were unoccupied. But the plaintiff was unfamiliar with the management of the road, and did not know that the track was double; and under these circumstances it was held that contributory negligence was not so clearly shown as to warrant the court in withdrawing the case from the jury.5 Nor is it per se negligence for a person to ride even on the front platform of a horse-car, no objection being made thereto, and it is a question for the jury as to whether or not the company was guilty of negligence in failing to provide a guard or fender." Again, where it appeared that the plaintiff escaped death by going from a passenger-car to the baggagecar to smoke, it was held that a charge that the jury should determine whether plaintiff, being where he had no business, contributed to the injury, and that, if it did, he could not recover, was as favorable to defendant as it could ask." been held in a Michigan case that for a passenger on an excursion-car to attempt to use the outside running-board on the side of a car, without perceiving that the company has placed coal-bins so near the track as to make it impossible for him to pass, did not constitute contributory negligence. And a railway company cannot escape liability for an injury to a passenger sustained while riding on its engine at the direction of its servants, by showing that he might have procured passage by some other line of travel.9

It has

1 Lapointe v. Middlesex R. R. Co. 144 Mass. 18; Werle v. Long Island R. R. Co. 98 N. Y. 650.

2 Merwin v. Manhattan R'y Co. (1888) 48 Hun, 608.

3 Dewire v. Boston etc. R. R. Co. (1889) 148 Mass. 343.

4 Topeka City R'y Co. v. Higgs (1888), 38 Kan, 375.

5 City R'y Co. v. Lee (1888), 50 N. J. 435.

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1

$995. (c.) Not contributory negligence when in the passenger's line of duty, or when acting under the direction of company's servant.-Nor is the passenger necessarily chargeable with contributory negligence if he took the position in which he was injured on account of his duty in connection with the transportation of live-stock,' or at the invitation, or under the direction, of a servant of the company, who had authority to invite or direct him so to do; unless he thereby incurred a risk which an ordinarily prudent man would not have taken. In a recent Nebraska case, there was held to be no error in an instruction that passengers have no right to enter or pass through a baggage-car attached to the train on which they are about to take passage; and, if plaintiff got upon the platform of the rear car, and discovered that the car, or that portion of it next to the platform upon which he got, was set apart for baggage, he would not be negligent in withdrawing therefrom to seek his place in a passenger-car without going through the baggage-car.5

1 Florida R'y & Nav. Co. v. Webster (Fla. 1888); Union R'y & Trans. Co. v. Shacklett (1886), 19 Ill. App. 145; Tibby v. Missouri Pacific R'y Co. (1885) 82 Mo. 292.

2 Lake Shore & M. S. R. R. Co. v. Brown (1887), 123 Ill. 162; Union R'y & Trans. Co. v. Shacklett (1386), 19 Ill. App. 145.

3 Lake Shore & M. S. R. R. Co. v. Brown (1887), 123 Ill. 162. Cf.

Cincinnati etc. R. R. Co. v. Carper (1888), 112 Ind. 26.

4 Lake Shore & M. S. R. R. Co. v. Brown, (1887), 128 Ill. 162.

5 Union Pacific R'y Co. v. Sue (Nebraska, 1889).

BEACH ON RAILWAYS-107

6 West Philadelphia Passenger R'y Co. v. Gallagher (1886), 108 Pa St. 524.

7

Webster v. Rome etc. R. R. Co. (1889), 23 N. Y. St. Rep. 778.

8 Dickinson v. Port Huron & N. R'y Co. 53 Mich. 43.

9

Lake Shore & M. S. R. R. Co. v. Brown, 123 Ill. 162.

3

4

§ 996. Defective appliances for transportation. While it cannot be said that a carrier by rail is prima facie chargeable with negligence in all cases, unless it can show that its track, cars, machinery, and other appliances for transportation are the best of the kind and in perfect condition,' and while the defendant may, in many cases, show by way of defense that its appliances were such as are in general use; yet there are cases in which a strong presumption of negligence arises from the mere fact that the accident occurred. Thus, negligence is prima facie established by proof that a bridge gave way while a train was crossing it So, where a passenger was injured by the falling of a piece of a porcelain shade from a lamp attached to the top of a car, it was held to be a question for the jury, as to whether or not the lamp was in that condition through the company's negligence, and further, that, in the absence of any explanatory circumstance, the mere fact that the shade broke and fell would be sufficient evidence of its defective and unsafe condition to charge the company with negligence.5 And allegations of negligence have been held to be proven by evidence that the accident resulted from the spreading of the track, caused by defective cross-ties; that it occurred by reason of a defective rail, or a defective brake, or through the absence of protective appliances required by statute. But in a recent case in Pennsylvania, a plaintiff suing for an injury caused by a swinging door, in passing from the defendant's waiting room to its ferryboat, was required to prove his allegations of negligence, the door being an ordinary one in plain view, and not a part of the company's machinery

8

The

for transportation. And in a New York case, it was held that the plaintiff should have been nonsuited in an action upon an injury received through the falling of a heavy parcel from a rack above his head, the parcel being in no wise extraordinary in appearance, nor likely to attract attention." presumption of negligence from the occurrence of an accident may be rebutted by showing that it resulted from a latent or secret defect which careful inspection could not have discovered; as, for example, a flaw in the interior of an axletree, or of a wheel, or of a rail. But the knowledge of a switchman of the defective condition of a car is notice to the company."

13

15

14

1 Eureka Springs R'y Co. v. Timmons (Ark. 1889).

2 Kolsti v. Minneapolis etc. R'y Co. 32 Minn. 133.

12

3 White v. Boston etc. R. R. Co. 144 Mass. 404; Bedford etc. R. R. Co. v. Rainbott, 99 Ind. 551; Cf. Ingalls v. Bills, 9 Met. 1; S. C. Thompson on Carriers, 112.

4 Bedford etc. R. R. Co. v. Rainbott, 99 Ind. 551.

5 White v. Boston etc. R. R. Co. 144 Mass. 404.

6 Gulf etc. R'y Co. v. Smith (Texas, 1889).

7 Texas Pacific R'y Co. v. Kirk, 62 Tex. 227.

8 Meister v. Union Pacific R'y Co. 3 Utah, 500; Cramer v. Union Pacific R'y Co. 3 Utah, 504.

9 Muehlhausen v. St. Louis R. R. Co. 91 Mo. 332, under Mo. Acts of 1869, § 4, requiring street-cars to be furnished with gates to prevent passengers getting on or off at the front of the car.

10 Hayman v. Pennsylvania R. R. Co. 118 Pa. St. 508.

11 Morris v. New York Central etc. R. R. Co. 106 N. Y. 678.

12 Ingalls v. Bills, 9 Met. 1; S. C. Thompson on Carriers, 112.

13 Redhead v. Midland R'y Co. Law R. 4 Q. B. 379; S. C. Thompson on Carriers, 124.

14 Anthony v. Louisville & N. R. R. Co. 27 Fed. Rep. 724.

15 Reed v. Burlington C. R. & N. R'y Co. (1887), 72 Iowa, 166; 2 Am. St. Rep. 243.

§ 997. The same subject, continued-The passenger's knowledge of the defect - Mere knowledge on the passenger's part of defective appliances, when the company allows him to take