FACTS. R. Co., as brakeman on a freight train, and was engaged, with others, in switching cars over a spur track of that company which crosses the track of the defendant company in the village of Dundas, descending in a southerly direction, on a steep grade at and above the crossing, to a mill, to and from which grain and flour were transported. Five cars were to be transferred from the mill over this track to the main line; but, owing to the grade, only three cars were so transferred on the first trial, and two were left standing on the track just below the crossing (about two car-lengths), and the engine was backing down to haul up these cars when the collision occurred in which plaintiff was injured. Upon this return trip, there is evidence tending to show that the engine was stopped, within the statutory limit, above the crossing. Upon this no point is made in the argument, nor in respect to the proof of the defendant's negligence, of which there is very little question, as the evidence shows that the train, composed of an engine and pay-car, was running recklessly, and at a high rate of speed, at the time. The defendant's assignments of error are-First, that the court erred in refusing its request to charge the jury that the plaintiff was chargeable with such contributory negligence as to bar any recovery in the action; second, that the court erred in charging the jury that the failure of the engineer in charge of the engine upon which plaintiff was injured to stop the same at the "stopboard," as required by the rules of the Milwaukee Co., was not negligence per se. CONTRIBUTORY 1. We think that, under the evidence, the question of the contributory negligence both of plaintiff and the engineer was for the jury. It is not necessary to state in detail the testimony tending to support this conclusion. It, however, appeared in evidence, among other things, that the stop-board in question was about 400 feet from the crossing, and situated on a descending grade, which increased from that point to the crossing and beyond; that the engine was halted about the same distance above the stop-board as was usually done, and at the customary place; that it stated slowly, and continued so to move, and passed the stop-board at a low rate of speed, and was backed down very carefully and cautiously to avoid running into the cars below on the same track; that these men had been informed, in answer to their inquiry, that the regular train of the St. Louis road had already passed, and the train which caused the collision was a wild train, which, without stopping, appeared suddenly and unexpectedly, running from 15 to 20 miles an hour; that both were looking and listening as they approached the crossing from the stopboard, but heard and saw nothing of the approach of this train in time to avoid the collision. The track of the St. Louis road was for a portion of the way obscured by intervening objects, and their attention would naturally be divided between reasonable observations in both directions and the management of their own train, and they were not bound to anticipate culpable negligence by the engineer of the St. Louis train in approaching the crossing The evidence of these and other facts, including the relative sitnation of the tracks of the two companies, to our minds unquestionably made the case one proper for the consideration of the jury. Hutchinson v. Railroad, 32 Minn. 402, s. c., 19 Am. & Eng R. R. Cas. 280, and cases cited. The plaintiff was the only one injured, and it is insisted by the appellant that he might have escaped injury by seasonably jumping from the engine, and that in 'failing to do so he was guilty of negligence; but, under the circumstances disclosed, the questionwhether, in the exercise of ordinary prudence, he should have seen the approaching engine in time to have escaped danger by jumping, or whether, if he was warned of the danger in time, his failing to escape in such an emergency was negligence, were also questions for the jury. It was not so clear what a person of ordinary prudence would do in such a case as to warrant the court in withdrawing the case from the jury. FAILURE TO NEGLIGENCE. 2. The court charged the jury that they should consider the fact that there was a stop-board directing the engineer to stop, and that the failure to stop the engine at that place was not necessarily negligence, but was a circumstance to be considered upon the question of contributory negligence. In this STOP NOT PER SE there was no error. The rules of the company do not necessarily determine the legal standard of negligence in an action for injuries caused by third persons. There was no reckless disregard of them. The engine was stopped, before reaching the post, in the customary place, and was doubtless handled with as much care, and at as slow rate of speed after passing it, as if there had been a literal compliance with the rules. Order affirmed. Violation of Ordinance Limiting Speed of Train does not excuse Contributory Negligence. While it is the duty of the men in charge of a train, approaching a street crossing in a city where there is an ordinance limiting the speed of trains in the corporate limits to six miles an hour, to ring the bell in the manner required by statute, and to run at a speed not to exceed six miles, and a person about to pass over the crossing has the right to ex pect them to do so, yet this does not excuse the person from the exercise of. ordinary care on his part. Nosler v. Chicago, B. & Q. R. Co. (Iowa), 34 N. W. Rep. 850. CENTRAL PASSENGER R. Co. v. KUHN. LOUISVILLE AND NASHVILLE R. Co. v. KUHN. (Advance Case, Kentucky. January 19, 1888.) The plaintiff was a passenger on a street-car, which, while passing a railroad crossing at night, was run into by a train and the plaintiff was injured. There was no flag-man stationed at the crossing, though one was required to be kept there by an ordinance of the municipality. The driver of the streetcar attempted to cross in front of the train after discovering its approach. In an action against both the railroad company and the street-car company, held: 1. That both companies were guilty of negligence and were liable to the plaintiff. 2. That the burden of proof was on the street-car company to show, if such was the case, that the injury did not result from its want of diligence, but from the negligence of the railroad company, and that the burden was on the plaintiff to prove negligence on the part of the railroad company, if he desired to recover from it. 3. That an instruction that greater caution is required on approaching a crossing when the view of the railroad is obstructed by buildings than when it is clear, was proper. 4. That an instruction that it was not the duty of the street car driver to stop his car and go ahead on foot to see if a train was approaching, unless he had reasonable grounds for believing that such was the case, was properly refused. 4. That it was not material error to allow the plaintiff to testify under objection that he had a wife and three children, if the jury was properly instructed as to what should be considered in ascertaining the measure of damages and did nor appear to have been influenced by the evidence objected to. In Kentucky, by virtue of the act of 1839, which enacts that in actions of trespass it shall be lawful for the jury to assess several or joint damages against the several defendants, in an action against joint trespassers the jury has power to direct the damages to be paid in such proportions as the participation of the defendants in the wrongful acts may require. APPEAL from court of common pleas, Jefferson county. This was an action brought by Christ Kuhn against the Central Passenger R. Co. and the Louisville & Nashville R. Co. to recover damages for personal injuries sustained while travelling on a street car of the passenger company. Judgment for plaintiff. Defendants appealed. Brown, Humphrey & Davie for appellant, Central Passenger R. Co. Barnett, Noble & Barnett and Wm. Lindsay for appellant, Louisville & N. R. Co. O'Neal, Jackson & Phelps and Kohn & Barker for appellee. PRYOR, C. J.-The appellee, Christ Kuhn, instituted the present FACTS action in the Jefferson court of common pleas against the Central Passenger R. Co. and the Louisville & Nashville R. Co., in which it is alleged that, when a passenger on the cars of the passenger railway company, he was injured by being thrown out of the car by reason of a collision between the cars of that company and those of the Louisville & Nashville R. Co., caused by the joint negligence of the employees of each defendant. The accident occurred in the eastern part of the city at the corner of Baxter avenue at a point where the city railway cars crossed the track of the Louisville & Nashville R. There was a verdict assessing the damages at $5000, and then a several finding by which the city railway company was required to pay $3000 of the damages, and the Louisville & Nashville R. Co. $2000. Both of the railroad companies have appealed. The plaintiff was injured about 9 o'clock at night in July, 1884; the car in which he was riding being struck by the engine of the Louisville & Nashville R. Co. in the attempt of the passenger car to cross its track. The question of negligence was properly submitted to the jury by special interrogatories and by the instructions given; the jury finding that the injury was caused by the concurrent negligence of the two companies. It is apparent from the testimony that each company was guilty of the grossest neglect, and liable to the appellee in damages for the injury sustained by him. It appears from the evidence that where the one track crossed the other was a public thoroughfare, used constantly by those passing in and out of the city, with street-cars crossing the track of the steam-railroad company many times during the day and until a late hour at night. That the Louisville & Nashville R. Co. kept a flag-man at the crossing during the day to warn those passing of the approach of its trains, but at night no flag-man was required to remain, and those passing this dangerous crossing, whether in street-cars or other modes of conveyance, were left to provide for their own safety, and to risk the danger of being run over by constantly passing trains, with no other protection than their own knowledge as to the time the trains would pass, or their vigilance in noticing the train's approach. No bars or gates had even been erected; and the trains running by steam day and night over the crossing, with a dense population on each side of the track, left to risk all the danger that was constantly menacing them at this particular point, and at a time when a vigilant flag-man was most needed. Buildings were also located at or near the track, so as to obstruct the view of those crossing when looking in the direction this train approached on the night of the accident. Such a movement of railroad trains in the midst of a dense population, constantly passing over its track, without any one to give notice of the train's approach, was negligence of the most flagrant character. As to the Central Passenger Co., it is manifest that its driver was unfitted for his 32 A. & E. R. Cas.-2 employment; that he took no pains to satisfy himself of the approach of the train, when others less interested than himself, and not in the cars, saw its approach in time for him to have saved himself if he had exercised even the slightest care. Besides, when he discovered the train's approach, he attempted to cross the track in front of it, when, by the exercise of the slightest care, he might have avoided all danger. It is therefore plain that the injury complained of resulted from the negligence of both companies. BURDEN OF It is proper to notice, first, some of the objections made by counsel for the street-car company during the progress of the trial, and now complained of as error to its prejudice. It is argued that the court below erred in adjudging that the burden of proof was on the street-car company (the collision being admitted) to show that the injury was not caused by its neglect, and at the same time holding that no such rule could apply to the Louisville & Nashville R. Co., the other defendant. This record shows that the Central Passenger Co. was willing to assume the burden, and asked that it be allowed to first introduce its evidence, and the motion was overruled. The plaintiff was then required to make out his case of negligence against both defendants, but, when the evidence was all in, the court permitted counsel for the passenger company to conclude the argument, and it therefore seems to us that, if either party was prejudiced by this action of the court, it was the plaintiff, and not the defendant. The rule adopted in Railroad Co. v. Smith, reported in 2 Duv. 556, places the burden in this case on the company; and, while that case may fail to distinguish properly the class of accidents to the passenger in which the burden is on the carrier from those where the burden is on the plaintiff, still in this case one of the grounds of complaint, or the negligence complained of, is the want of care on the part of the driver, and his want of fitness for the position given him. Cooley on Torts, referring to a Pennsylvania case (Laing v. Colder, 8 Pa. St. 479; Sullivan v. Railroad Co., 30 Pa. St. 234), says: "Prima facie, where a passenger, being carried on a train, is injured without fault of his own, there is a legal presumption of negligence, casting upon the carrier the onus of disproving it." "This is the rule when the injury is caused by a defect in the road, cars, or machinery, or by a want of diligence or care in those employed, or by any other thing which the company can or ought to control, as a part of its duty to carry the passengers safely; but this rule of evidence is not conclusive." Cooley, Torts, 663. The injury in this case was the want of diligence in the driver, and the law will presume neglect from the mere fact of the injury; and the burden is on the defendant, who may show that the injury originated from causes the driver could not prevent. The passenger commits himself to the custody and control of the carrier, and if the car breaks, or the car while controlled by the driver should |