Sec. 940. (§ 521.) Same subject-Not liable for not guarding against accidents not reasonably to be anticipated.—While requiring of carriers of passengers by railroad such stational arrangements as are intended to secure the safety of the passenger, the law will, in this respect, demand nothing unreasonable. Thus, where brass nosings upon the steps which led to the platform had been worn very smooth by constant use for a long time, in consequence of which the plaintiff slipped and fell, it was held that he could not recover, although it was shown to be the opinion of those experienced in such matters, that if the nosings had been made of lead instead of brass, the accident would not probably have occurred; nor was it negligence not to provide the stairway with hand-railings when it was protected by walls on both sides.47 So where the foot of a weighing machine, used for weighing baggage, projected some six inches above the floor of the platform, but had been so used for a long time without occasioning an accident, it was held that the company could not be held liable for negligence at the suit of a passenger who had stumbled over it and hurt himself, there having been no reasonable ground for anticipating such an accident under the circumstances. 48 And was not carelessly done; but I think the inconvenience was not so great as to make it reasonable for the plaintiff to get rid of it in this way." 47. Crafter v. The Railway Co., L. R. 1 C. P. 300. the plaintiff, but only considerable obvious danger and that the act inconvenience. It has been argued that no amount of inconvenience, if there be no actual peril, will justify a person incurring danger in an attempt to get rid of it. I confess I am not prepared to go that length. I think if the inconvenience is so 48. Cornman v. The Railway great that it is reasonable to get Co., 4 H. & N. 781. And see furrid of it by an act not obviously ther upon this subject, Beard v. dangerous, and executed without The Railroad, 48 Vt. 101; Hulcarelessness, the person causing bert v. The Railroad, 40 N. Y. the inconvenience by his negligence would be liable for any injury that might result from an attempt to avoid such inconvenience. I think here the jury might well find that there was no 145; Patten v. The Railroad, 32 Wis. 524, 36 Wis. 413; Gaynor r. The Railroad, 100 Mass. 208; Forsyth v. The Railroad, 103 id. 510; Smith v. The Railway, L. R. 2 C. P. 4; Byrne r. Boadle, 2 H. where a runaway horse broke through the gate, passed between a locomotive and a telegraph pole and went up on the platform and injured a passenger standing there, it was held that there was no evidence of negligence on the part of the railroad company.49 Sec. 941. Same subject-The degree of care required. The degree of care required of carriers of passengers by railroad in respect of their stational arrangements is, as has been seen, not so great as in respect of their tracks and running machinery. The law requires in the latter case the utmost care which human foresight can suggest, but for the approaches to the cars, such as platforms, halls, stairways and the like, a less degree of care is required, and for the reason that the consequences of a neglect of the highest skill and care which human foresight can attain to are naturally of a much less serious nature. The rule in such cases is that the carrier is bound sim reasonably safe and proper place. During its occupancy, the landlord placed in the hotel a heating apparatus, a system in common use, and which the testimony showed to have been a reasonably safe one from which no danger was to be apprehended if it was properly operated and controlled. & C. 722; Scott v. London Dock a In Kirby v. Canal Co., 46 N. Y. Supp. 777, 20 App. Div. 473, the depot of the railroad company had been destroyed by fire. It sought a temporary place for the sale of its tickets and the reception of those proposing to become passengers upon its trains. The place it secured was in an hotel occupied by the family of the proprietor and by guests and travelWhen it went there, there was no question but what it was ers. The apparatus ex ploded and a passenger in the waiting room was injured. The court held that the danger was neither known nor reasonably to be apprehended by the railroad company; that it had no right to undertake the operation of the heating apparatus itself and that it was not incumbent upon it to keep constant watch and guard over the valve of the heating apparatus. 49. Brooks v. Railroad Co., 168 Mass. 164, 46 N. E. Rep. 566. ply to exercise only ordinary care in view of the dangers to be apprehended.50 Sec. 942. Duty of carriers by water in respect to wharves, approaches and stational facilities.-Carriers by water are not exonerated by the peculiar and sometimes perilous nature of their calling from providing reasonably safe and sufficient facilities for embarking and discharging their passengers. This duty extends not only to providing reasonably safe and suitable docks and approaches, but also to the exercise of due care in mooring their vessels to or in taking them from the docks. Thus it is negligence on the part of a carrier by water to so moor a boat, when there is no real necessity therefor, that there is a space in which it plays to and fro, or in which it 50. Railway Co. v. Barnett, 65 v. Railroad Co., 106 N. Y. 136; Ark. 255, 45 S. W. Rep. 550, cit- Mayne v. Railway Co., 12 Okl. ing Hutch. on Carr.; Falls v. 10, 69 Pac. Rep. 933; Johns v. Railroad Co., 97 Cal. 114, 31 Pac. Railroad Co., 39 S. C. 162, 17 S. Rep. 901; Railway Co. v. Reeves, E Rep. 698, 20 L. R. A. 520, 39 116 Ga. 743, 42 S. E. Rep. 1015; Am. St. Rep. 709; Railway Co. v. Brown v. Railway Co., 119 Ga. 88, Butcher, 83 Tex. 309, 18 S. W. 46 S. E. Rep. 71; Railway Co. v. Rep. 583; Herrman v. Railway Brown, 120 Ga. 380, 47 S. E. Rep. Co., 27 Wash. 472, 68 Pac. Rep. 942; Railway Co. v. Stewart, 77 82, 57 L. R. A. 390; Duell v. RailIll. App. 66, citing Hutch. on way Co., 115 Wis. 516, 92 N. W. Carr.; Hiatt v. Railway Co., 96 Rep. 269; Crowe v. Railroad Co., Iowa, 169, 64 N. W. Rep. 766; Mich. ,106 N. W. Rep. Railroad Co. v. Reynolds, 24 Ky. 395; Pincus v. Railroad Co., L. Rep. 1402, 71 S. W. Rep. 516; N. C. , 53 S. E. Rep. 297; Maxfield v. Railroad Co., Houston, etc. R'y. Co. v. McCarty, Tex. Civ. App. 89 S. W. Rep. 805; Pittsburg, etc. R'y Co. v. Harris, Ind. App. 77 N. E. Rep. 1051. Me. Mich. , 104 N. W. Rep. 390; Gunderman v. Railway Co., 58 Mo. App. 370, citing Hutch. on Carr.; Robertson v. Railroad Co., 152 Mo. 382, 53 S. W. Rep. 1082; Dotson v. Railroad Co., 68 N. J. Law 679, 54 Atl. Rep. 827; Falk v. Railroad Co., 56 N. J. Law 380, 29 Atl. Rep. 157; Kelly v. Railroad Co., 112 N. Y. 443; Lafflin In Nebraska, by statute, a person who is upon the station grounds, awaiting the departure of his train, is entitled to the same degree of care as a passenger lawfully upon the company's train. Railroad Co., v. Hagblad, Neb. -, 101 N. W. Rep. 1033. But see the same But m this re rises and falls with the action of the water.1 spect the carrier has a right to assume that passengers will exercise at least ordinary care for their own safety.2 If insufficient light be provided,3 and a passenger is consequently injured, or if he sustains injury by stepping into a hole in the dock or wharf, the carrier must respond in damages as in the case of railroad carriers. But he cannot be held responsible for injuries received from obstructions on the wharf or vessel which were in plain view and could easily have been avoided by the passenger.5 So the carrier by water, when such becomes necessary, is 1. Mayor of St. John v. McDonald, (Can.) 14 S. C. R. 1; The City of Portsmouth, 125 Fed. 264; Mueller v. Ferry Co., 61 N. Y. Supp. 986, 46 App. Div. 560. A space of two inches between the bow of a ferry boat and the ferry bridge was held not to be negligence on the part of a carrier where the evidence was virtually uncontradicted that the appliances, including the boat, bridge, windlass, cables, and slips, were the best known for such purposes, and were in general use; that it was impossible, under certain conditions of the tide, to so bring the bow of the boat and the bridge together as to make them level and leave no space between them; that the crowding of the passengers to the front lowered the front, and the flood tide always forced the stern up the stream, leaving such a space between bow and bridge which was unavoidable. Duke v. Ferry Co., 29 N. Y. Supp. 739, 9 Misc. 268; affirmed, 145 N. Y. 640, 41 N. E. Rep. 88. 138 N. Y. 644, 34 N. E. Rep. 280, 53 N. Y. St. Rep. 9, reversing 19 N. Y. Supp. 675; Fogassi v. Railroad Co., 45 N. Y. Supp. 175, 17 App. Div. 286, affirming 13 Misc. 102, 34 N. Y. Supp. 116. 3. Scanlan v. Tenney, 72 Fed. 225. 4. White v. Navigation Co., 36 Wash. 281, 78 Pac. Rep. 909. And where a passenger of a railroad company, having a through ticket to her destination by a connecting steamboat line, in passing over a wharf which belonged to the company and was used by it as a necessary passage-way to the steamer, and over which the passengers were directed to pass, stepped into a hole in the planking of the wharf from which she received a severe injury, the wharf was treated as a part of the company's road, and it was held liable for the injury. Knight v. The Railroad, 56 Me. 234. 5. Strutt v. Railroad Co., 45 N. Y. Supp. 728, 18 App. Div. 134. (Passenger stumbled over hose on wharf;) Seddon v. Bickley, 153 Pa. St. 271, 25 Atl. Rep. 1104, 6 bound to provide a suitable gang plank over which his passengers may pass, and to see that it is properly secured before the passengers are invited to use it. Whether the gang plank should be protected by guard rails will depend upon all the attending circumstances. But where a boat was crowded, and the gang plank was narrow and rested at a sharp angle on the wharf, it was held that a custom to dispense with railings, ropes, or guards of any kind could not be upheld. So the roadways and bridges10 leading to the wharf or boat must be maintained in a reasonably safe condition, and if a roadway is steep, adequate facilities must be provided for keeping teams from running back on one another.11 But where a passenger failed to avail himself of the arrangements provided by the carrier for a safe boarding or landing, and knowingly took a more dangerous method, it was held that he was chargeable with such contributory negligence as would bar him from the right to a recovery for an injury thereby sustained.12 (passenger stumbled over gang 7. Croft v. Steamship Co., 20 plank in usual place on vessel.) 6. Croft v. Steamship Co., 20 Wash, 175, 55 Pac. Rep. 42; Bartnik v. Railroad Co., 55 N. Y. Supp. 266, 36 App. Div. 246; Hrebrik v. Carr, 29 Fed. Rep. 289. If a passenger is invited to leave a ferry boat when it is assumedly fast to the float, and no gang plank is provided, he is justified in believing that the boat will remain against the float, and that the designated pathway will continue safe for its purpose. In such case negligence of the carrier will be inferred from a backward impulse of the boat which the duty of exercising reasonable diligence for the safety of its passengers renders it incumbent upon the carrier to avoid; or, if unable to avoid, to explain by satisfactory evidence. Spero v. Railroad Co., 47 N. Y. Supp. 1093, 21 Misc. 683. Wash. 175, 55 Pac. Rep. 42; 8. Burrows v. Lownsdale, 133 Fed. 250, 66 C. C. A. 650; Miller Steamboat Co., 73 Hun, 150, 25 N. Y. Supp. 924. v. 9. A ferry company, which habitually permits passengers to use the roadway designed for ve hicles, must keep that roadway in an equally "reasonably safe" con dition for their use as the side walk provided for foot passengers Wolf v. Brooklyn Ferry Co., 66 N. Y. Supp. 298, 54 App. Div. 67. 10. Patton v. Pickles, 50 La Ann. 857, 24 So. Rep. 290. 11. Townsend v. City of Bos ton, 187 Mass. 283, 72 N. E. Rep 991. 12. Plant Inv. Co. v. Cook, 85 Fed. 611, 29 C. C. A. 377; Hoboken Ferry Co. v. Feiszt, 58 N. J. Law 198, 35 Atl. Rep. 299. |