that it is proof of negligence to go to a jury if the company leave cut grass or weeds an unreasonable time on the side of their road, the ignition of which by the sparks of passing trains communicates fire to the adjacent fields or buildings. Smith v. S. W. Ry. Co., L. R. 6 C. P., 14, 5 C. P., 98; Flynn . S. F. R. R. Co., 40 Cal., 14; Reese v. Chicago R. R. Co., 30 Iowa, 78; Kansas Ry. Co. v. Butts, 7 Kans., 308; Hearne v. R. R. Co., 50 Cal., 482; Ill. Cent. R. R. Co. v. Mills, 42 Ill., 407; O. & M. R. R. Co. v. Shanefelt, 47 Ill., 447; Ill. Cent. R. R. Co. v. Frazier, 64 Ill., 28; Rockford R. R. Co. v. Rogers, 62 Ill., 346; Ill. Cent. R. R. Co. v. Munn, 51 Ill., 78; Troxler v. R. R. Co., 74 N. C., 377; Toledo, etc., R. R. Co. v. Wand, 48 Ind., 476; Pittsburgh R. R. Co. v. Nelson, 51 Ind., 150; Smith v. R. R., 6 R. L., C. P., 14.

The plaintiff may also show to prove negligence the fact that the same engine has previously scattered fire (Cleveland v. Grand Trunk Ry. Co., 42 Vt., 449), or that defendant's engines generally have done so. Field v. N. Y. Central R. R. Co., 32 N. Y., 239; Piggott v. Eastern Co. R. R. Co., 3 C. B.,

229.

The measure of prudence required on the part of a railroad company of course differs with the character of the country traversed, and the consequent increase or decrease of risk incident to the use of their engines. Fero . Buffalo R. R. Co., 22 N. Y., 309; Great Western R. R. Co. v. Haworth, 39 Ill., 346.

It should also be carefully observed that in some cases though there may be no positive proof of negligence yet the circumstances may be such as to make it the most probable hypothesis, in which case the burden is on the defendant to disprove it. Kendall v. Boston, 118 Mass., 234, Gagg v. Vetter, 41 Ind., 228; Garrett v. R. R., 36 Iowa, 121; Piggott v. R. R. Co., 3 C. B., 229.

The whole of this question has been done away with in some States by the passage of statutes which make the firing of property by the engines of a railroad company negligence irrespective of the care taken by the company. As to contributory negligence, it is to be noted that in some States the owners of cultivated land contiguous to a railroad are held to be bound to keep it free from dry grass and weeds, on pain in case of fire of being held guilty of contributory negligence. O. & M. R. R. Co. v. Shanefelt, 47 Ill., 497; Ill. Cent. R. R. Co. v. Frazier, ibid., 505; Ill. Cent. R. R. Co. v. Munn, 51 Ill., 78; Toledo, etc., R. R. Co. v. Maxfield, 72 Ill., 82; Kansas R. R. Co. v. Brady, 17 Kans., 380; Coates v. R. R., 61 Mo., 37; Fitch v. R. R., 45 Mo., 422; Murphy v. R. R., 45 Wis., 222. But this rule will not apply to woodland (Chicago, etc., R. R. v. Simonson, 54 Ill., 504; Kans. Pac. R. R. Co. v. Butts, 7 Kans., 308; Spaulding v. R. R., 30 Wis., 110; Reese v. R. R. Co., 30 Iowa, 33), nor to buildings erected near the line of the road in dangerous contiguity to it. Phila., etc., R. R. Co. v. Hendrickson, 80 Penn. St., 182; R. R. v. Chase, 11 Kans., 47; Grand Trunk R. R. Co. v. Richardson, 91 U. S., 454; Burke v. R. R., 7 Heisk., 451.

And in any event, even in the case of cultivated ground, the railroad company is bound to take sufficient care to guard against the ignition of all reasonable accumulations of grass or other inflammable material (Salmon v. R. R., 38 N. & L., 5; Garrett v. R. R. Co., 36 Iowa, 121; Kellogg v. R. R. Co., 26 Iowa, 223; Erd v. R. R. Co., 41 Wis., 65), because "farmers may cultivate, use, and possess their farms and improvements in the manner customary among farmers, and are not bound to use unusual means to guard against the negligence of the railroad company." Phila. & Reading R. R. Co. v. Henderson, 80 Pa. St., 182, 191.

BENJ. LANE

v.

EAST TENNESSEE, VIRGINIA & GEORGIA R. R. Co.

(Advance Case, Tennessee.)

A railroad company has the right to make regulations requiring passengers to purchase tickets before entering coaches attached to their freight trains, and authorized conductors to expel persons not having tickets, even though they may offer money in payment of their fare.

But where the company has been usually receiving money on their freight trains for fare, passengers wanting thus to pay their fare were entitled to notice of the regulation making the change, before they could be expelled for non-compliance.

MCFARLAND, J.-The plaintiff, on the afternoon of the 4th June, 1877, entered a "caboose" attached to a freight train on defendant's road at Jonesboro, intending to go to Carter's depot, twelve miles distant, and near to which place he lived. Soon after the train started he was called on by the conductor for his ticket, but had none. He, however, offered to pay his fare in money, but the conductor refused to receive it, and required the plaintiff to leave the train, causing it to stop for that purpose within a distance of from three hundred yards to a half mile of the depot at Jonesboro. The plaintiff left the train and walked back to the depot, carrying with him some articles he had purchased. He was compelled to wait from that time, about 5 P.M., until the next train, 9.20 the same evening, and was consequently delayed until after midnight getting home. This action was brought to recover damages. Under the instruction of the circuit judge, there was a verdict for the plaintiff for fifty dollars. Both parties moved for a new trial, and being refused, have appealed in error.

The defence was that by a regulation of the company, which went into effect on the 1st day of June, three days before the occurrence, passengers were not permitted to travel on freight trains without first procuring a ticket of the depot agent, and conductors of freight trains were not permitted to receive the fare of passengers. This defence was set up by a special plea, to which the plaintiff, by leave of court, filed two replications: 1st. That he had no notice of the regulation; and 2d. That there was no agent present from whom he could have purchased a ticket. This latter, however, was disproven; so the real issue of fact upon which, under the charge of the court, the jury found for the plaintiff was whether or not the plaintiff had notice of the regulation in question. It appears from the plaintiff's testimony that previous to that time he had been in the habit of riding on freight trains with

out a ticket, and it was not denied that it had been the habit of the company to carry passengers in that way.

We do not doubt that such a regulation was reasonable, and the company had the right to adopt it. See 2 Redfield on Railway, 283; v. Ill. Č. R. R. Co., from Sup. Court, Iowa, 10 Am. Railway Rep., 66; Toledo R. R. Co. v. Patterson, 7 Am. Railway Rep., 168, Sup. Court, Illinois. And so the circuit judge instructed the jury; but he also held that it was incumbent on the defendant to show that it had given notice to the travelling public, and especially to the plaintiff, of the new regulation. It is insisted, in argument, that no notice was required in regard to a freight train; but we are of opinion that in view of the previous course of business of the company in allowing passengers on freight trains without restriction, notice of the change was necessary, and without such notice passengers had the right to presume that they might travel as formerly. Perhaps the most serious objection to the charge is that it apparently was intended to mean that the notice should have been given to the plaintiff personally, and that printed notices posted in the depot and on the inside and outside of the cars were not sufficient. The publication of such notice in such manner and for such a length of time as to give the public reasonable opportunity to be informed and to raise a fair presumption of notice in fact, ought to be sufficient. We are of opinion that ordinarily actual personal notice of the new regulation would not be necessary. But in this instance the plaintiff had been in the habit of riding on freight trains without a ticket. The change had only gone into effect three days before, and had not been generally published. Under such circumstances it would not be unreasonable to require that passengers should have their attention called to the matter before they got on the train or before it started, at least until the regulation had been adopted and had been generally published.

There was very strong and direct testimony to show that the plaintiff was notified by a director of the company of the necessity of procuring a ticket, but this he denied in his own evidence, and it being a mere conflict of testimony we cannot disturb the finding of the jury.

There is certainly no ground to grant a new trial to the plaintiff. It clearly appears that the conductor treated him politely, used no force, and he was subjected to no harsh treatment in any manner. He was told of the regulation and the necessity of the conductor obeying his instructions, and was asked to leave the train, and did so. No special damage was shown, and the delay and inconvenience were by no means serious.

Judgment affirmed.

See Burlington, etc., R. R. Co. v. Rose, 1 Am. & Eng. R. R. Cas., 253; O'Brien v. N. Y., etc., R. R. Co., 1 Am. & Eng. R. R. Cas., 259.

MOSES A. FREIDENRICH

v.

THE BALTIMORE & OHIO RAILROAD COMPANY.

(53 Maryland Reports, 201. March 11, 1880.)

The appellant was the holder of a commutation ticket between Baltimore and Washington, issued to him by the appellee. It was stipulated on the ticket that it should be used only by the appellant, and that if found in the hands of any one but the appellant it would be forfeited and taken up. Before the expiration of the time for which the ticket was issued, the appellant entered the appellee's cars in Baltimore on his way to Washington. After leaving Baltimore and before reaching the Relay Station, the conductor took up the appellant's ticket and demanded from him the usual passenger fare. This the appellant refused to pay, and was thereupon, on reaching the Relay Station, put off the appellee's cars. The appellant sued the appellee to recover damages for an alleged unlawful expulsion from its cars. It appeared in evidence on the part of the appellee, that the ticket in question had been used by persons other than the appellant, in travelling over the appellee's road, and that no force, violence, or harsh language had been used by the appellee's agent, in removing the appellant from its cars. The appellant testified that he had never parted with the ticket, and that it had never been used by any other person than himself. The verdict being against the appellant, he claimed, there was error in a modification by the court of his first prayer-that the plaintiff is entitled to recover if the jury find the ticket in question was taken from his possession and he ejected from the cars, and shall further find that the said plaintiff did not loan, sell, or in any manner transfer said ticket to any other person, or knowingly permit any other person to use said ticket before that time," and the court here added, "and shall find that said ticket was not used by any other person than the plaintiff, through the negligence or want of due care on the part of the plaintiff," and that there was also error in granting certain prayers of the appellee. Held: 1st. That the ticket was properly taken from the appellant if before that time it had been used by any other person with his connivance, and if so used, the appellee's agent had afterward the right to take it up, even in the hands of the person to whom it was issued.

2d. That as there was no question of negligence raised by the proof in the case, the addition to the appellant's prayer was unnecessary; but as it could not, in any respect, have prejudiced the appellant's case before the jury, it is not a sufficient cause for a reversal.

3d. That as the only question of fact presented by the whole proof for the determination of the jury, was whether or not the ticket in question had been used by persons other than the appellant, there was no error in omitting from the appellee's prayers which were granted, the addition to the appellant's prayer as to the negligence or want of due care on the part of the plaintiff."

Instructions given to the jury by the court are confined to the evidence in the particular case. They are not intended or required to cover more than the evidence offered, or to state any principle of law which is not appliable to it.

Appeal from the Circuit Court for Frederick County.

This action was instituted in the Superior Court of Baltimore

City, and removed on the suggestion of the defendant to the Circuit Court for Frederick County, and there tried. The case is stated in the opinion of the court.

Exception. At the trial, the plaintiff offered three prayers:

1. The first prayer, with the court's addition, is substantially stated in the opinion of the court.

2. That if the jury find for the plaintiff on plaintiff's first prayer, they should award the plaintiff such sum as damages as will compensate him for the injury to his person, feelings, and character, arising from the unlawful acts of the defendant, through its said agent or agents.

3. That if the jury find for the plaintiff on the plaintiff's first prayer, and believe that said unlawful acts of the defendant were deliberately and forcibly done, then they may award such further sum as damages as they may consider a proper punishment for the conduct of the defendant, and acting through its said agent or

agents.

And the defendant offered seven prayers, of which it is necessary to set out only the following:

1. That the ticket purchased by the plaintiff from the defendant, and offered in evidence, if the jury shall so find, was a special contract between the plaintiff and defendant, by which the plaintiff agreed that, in consideration of the price paid therefor, that said ticket would be used only by himself in riding on the cars of the defendant during the time limited by the terms thereof, and between the stations designated therein, to be forfeited and taken up if used for such purposes by persons other than the plaintiff. And if the jury shall find from the evidence that said ticket was used by persons other than the plaintiff in riding in defendant's cars, and that the agents of the defendant, after such use of said ticket by persons other than the plaintiff, took up said ticket, then, by the terms and conditions of said agreement, the rights and privileges given and granted by said ticket became forfeited, and the defendant or its agents had the right to take up said ticket whenever found, even in the hands of the person to whom it was issued; and if the jury shall further find that the regular fare between said points was demanded of plaintiff, and the plaintiff refused to pay the same, then that the defendant or its agents had the right to remove the plaintiff from its car, using no more force than was necessary for that purpose, and their verdict must be for the defendant.

4. If the jury shall believe that the plaintiff was ejected from the defendant's cars at the time and place and under the circumstances detailed by him in evidence, nevertheless the plaintiff is not entitled to recover under the pleadings and evidence in this case, if the jury shall further find from the evidence that any person or persons other than the plaintiff himself had previously used