N. Y. 378; Johnson v. Winona etc. R. R. Co. 11 Minn. 296; Fuller v. Nau gatuck R. R. Co. 21 Conn. 563; Hall v. Connecticut River R. R. Co. 13 Conn. 326; Wichita etc. R. R. Co. v. Davis, 37 Kan. 743; 1 Am. St. Rep. 275.

10 Little Rock etc. R'y Co. v. Eubanks, 48 Ark. 460; 3 Am. St. Rep. 245.

6

2

4

§ 977. Contributory negligence. When the person injured by a railway company might, by the exercise of due care, have avoided the consequences of the defendant's act, he is deemed to have contributed to the injury, and is barred from recovering damages therefor. Thus, a railway company will not be held liable for injuries received by a passenger boarding or alighting from a car or train while in rapid motion, negligently and unnecessarily leaving his seat while the train is in motion,* riding on platforms and in other places not designed for the accommodation of passengers, volunteering to act as a brakeman,5 disregarding warning of danger, or traveling on the Sabbath day contrary to the statutes of the State." But slight negligence on his part will not preclude his recovering of the company if it is shown to have been grossly negligent in comparison." It is for the jury to determine in each case whether the passenger was guilty of contributory negligence, and whether the injury would not have been received but for his failure to exercise due care in seeking to avoid the consequences of the defendant's acts or omissions.9 The plaintiff need not allege nor produce evidence to show that he did not contribute to the injury.10 Contributory negligence on the part of the plaintiff, when relied upon by the defendant, must be specially pleaded and proven." Pleading it does not throw the burden of disprov ing it upon the plaintiff.

12

1 Wabash etc. R'y Co. v. Central Trust, 23 Fed. Rep. 738; Stakes

Saltonstall, 13 Pet. 181; aff'g S. C. sub nom. Saltonstall v. Stockton, Taney's Dec. 111; S. C. Thompson on Carriers, 183; Morrissey v. Wiggins Ferry Co. (1869) 43 Mo. 330; S. C. Thompson on Carriers, 243. But see Merrill v. Eastern R. R. Co. 139 Mass. 252, where, in an action of tort gainst a railway company under the Missachusetts statute (Mass. Pub. Sat. ch. 112, § 212), for injuries to a passenger, the fact that he failed to exercise due care was held not to constitute a good defense.

7 Bucher v. Cheshire R. R. Co. 125 U. S. 555, following the Massachusetts decisions, though not approving their soundness.

8 Lake Shore etc. R. R. Co. v. Brown, 123 Iil. 12; 5 Am. St. Rep. 510; Lake Shore esc. R'y Co. v. O Conner, 115 ill. 254; Calumet Iron and Steel Co. v. Martin, 115 Ill. 358; Chicago & A. R. R Co. v. Dillon, 17 Ill. App. 355.

9 City Railway Co. v. Lee (1883), 50 N. J. 435; 7 Am. St. Rep. 798; Wandell v. Corbin, 49 Hun, 603.

10 McKimble v. Boston etc. R. R. Co. 139 Mass. 512; Hawes v. Burlington etc. B'y Co. 64 Iowa, 315.

11 Hawes v. Burlington etc. R'y Co. 61 Iowa, 315.

12 Hawes v. Burlington etc. R'y Co. 61 Iowa, 315; Texas Pacific R'y Co. v. Davidson, 68 Tex. 370; Gulf etc. R'y Co. v. Williams, 70 Tex. 159.

§ 978. Intersecting roads-Thorogood v. Bryan-denied. Under the English common law, in the case of injuries resulting from the collision of two vehicles belonging to different carriers, the negligence of the one in fault was imputed to his passengers, and they were debarred from recovering against the other carrier.1 This doctrine, however, has been generally denied on this side of the Atlantic." In this country, a passenger may recover for an injury sustained through the negligence of another company than that carrying him, whether the latter was or was not partly in fault. And the same right has at last been accorded him in England.* The passenger, of course, has his remedy against his own carrier, when it has been guilty of negligence. And the two companies may be sued jointly, if the servants of both were negligent.

5

Where railroad tracks intersect, or where a streetcar track crosses a railway, the greatest care and prudence, every practicable precaution that human foresight can devise, should be taken to avoid collision. Greater care should be observed by drivers of street-cars on approaching a railway crossing when the view is obstructed by buildings than when it is clear; and in case of doubt, a driver should stop his car, and go ahead on foot, to ascertain whether a train be approaching or no.3

1 Thorogood v. Bryan (1849), 8 Com. B. 114, 129; S. C. Thompson on Carriers, 273; Beach on Contributory Negligence, §§ 65, 108-118, 139.

2 Barnett v. New Jersey Railroad and Transportation Co. (1873), 33 N. J. 225; Thompson on Carriers, 281; Beach on Contributory Negligence, § 114. 3 Pittsburg C. R'y Co. v. Spencer, 98 Ind. 186; Flaherty v. Northern Pacific R'y Co. (1888) 39 Minn. 328.

4 The Bernina (1887), Law R. 12 P. D. & Admiralty Div. 53, 82, where Lord ESHER, M. R., says: "After having thus laboriously inquire into the matter, and baving considered the case of Thorogood v. Bryan (3 Com. B. 115), we cannot see any principle on which it can be supported; preponderance of judicial and professional opinion in England is against it, and the weight of judicial opinion in America is als against it."

the

5 Coddington v. Brooklyn Crosstown R. R. Co. 102 N. Y. 65; Central Passenger R'y Co. v. Kuhn (1888), 86 Ky. 578; Pratt v. Chicago etc. Ry Co. (1888) 33 Minn. 455.

6 Flaherty v. Northern Pacific R'y Co. (1888) 39 Minn. 328.

7 Coddington v. Brooklyn Crosstown R. R. Co. 102 N. Y. 66; Central Passenger R'y Co. v. Kuhn, 86 Ky. 578.

8 Central Passenger R'y Co. v. Kuhn, 86 Ky. 578.

§ 979. Intoxication as contributory negligence. In actions against carriers by rail for injuries resulting from negligence, the defendant may plead that the plaintiff was at the time of the accident, partly under the influence of liquor, and if the jury find that fact to have contributed to produce the injury, the verdict should be for the defendant.1 Thus, where a railway company was sued for damages for personal injuries, received in alighting from its train, and it appeared that the person injured was

at the time of the accident under the influence of liquor, a charge to the jury, that they "might consider the fact of plaintiff's drinking as a circumstance bearing upon the question of reasonable diligence and caution," was held insufficient, as the instruction should have been that if the drinking "contributed at all to the injury, plaintiff could not recover; "2 for partial intoxication does not excuse the passenger from exercising ordinary care and prudence. And the company's servants, not knowing of the intoxicated condition of a passenger, are not bound to exercise greater care toward him than toward others in a normal condition.*

3

1 Strand v. Chicago etc. R'y Co. 67 Mich 380; Beach on Contributory Negligence, §§ 204, 205, 390 393.

2 Strand v. Chicago etc. R'y Co. 67 Mich. 380.

3 Evans v. Missouri Pacific R'y Co. (1888) 71 Tex. 361.

4 Strand v. Chicago etc. R'y Co. 67 Mich. 380.

arm

980. Injuries from protruding one's from a car window.-It cannot be said as a matter of law that it is contributory negligence for a passenger to rest his arm upon the sill of an open window of a street-car,' or a steam-railway carriage, while it is in motion, provided he does not protrude it beyond the sill. His negligence in such a case is a question of fact for the jury.3 Thus, in a late case in New York, it was held that where a passenger sat with his arm resting on the window-sill, but according to the weight of evidence, not extending without, and some part of a passing freight train struck and seriously injured the arm, a want of proper care on the part of the railroad company was to be presumed, and unless the contrary could be shown, a verdict for the plaintiff

BEACH ON RAILWAYS -105

should be sustained. Even if he does allow his arm to protrude beyond the window-sill, yet if the company's servants see his danger and fail to warn him, he may recover damages notwithstanding his negligence.5

1 Germantown Pass. R'y Co. v. Brophy, 105 Pa. St. 38.

2 Breen v. New York Central etc. R. R. Co. 109 N. Y. 297.

3 Quinn v. South Carolina R'y Co. (1888), 29 S. C. 381; Dahlberg v. Minneapolis St. R'y Co. 32 Minn. 404; 50 Am. Rep. 585.

4 Breen v. New York Central etc. R. R. Co. (1888), 109 N. Y. 297.

5 Dun v. Seaboard etc. R. R. Co. (1885) 78 Va. 645; 49 Am. Rep. 388.

981.

Dangerous premises and approaches. The duty of railway carriers to provide safe means of going to and departing from their stations, and their duty to preserve passengers from injury while in and about their depots, has been already treated, incidentally, in connection with the beginning and termination of the contract of carriage; and that the railway company is liable for injuries to passengers occasioned by its neglect of duty in this respect is well established by the cases there cited' Further illustrations of the rule will be found in an early case, where a passenger was injured by a weighing machine on the carrier's platform;2 and in a more recent case, where a person had purchased a ticket and was properly waiting for the train, the company was held liable for an injury to him caused by a blow from a mail-bag thrown by a government clerk from the postal car, cognizance being shown on the part of the company of the habit of throwing out the bags in this way, and no steps to prevent an accident having been taken by them. The railway company, however, is not bound to keep its premises absolutely safe, and it is