for his safety.30 In The Railway Co. v. Parry,31 it appeared that the conductor, while passing through the train, observed that the passenger was ailing with what seemed to him to be a fit. On the arrival of the train at the next station, the conductor called the depot-master to his assistance and together they removed the passenger from the train, the conductor directing the depot-master to see that he was put upon a later train and taken to his destination. The depot-master tried to converse with the passenger, but elicited nothing but groans and unintelligible replies. It seemed, however, to the depotmaster that he desired to go on his way, so, after assisting him to put on his coat, he was allowed after a few moments to take his course without further attention. From the depot he wandered to a point on the railway track, some five miles away, where he was run over and killed by a train. The negligence complained of was the failure on the part of the carrier to exercise proper care and caution in protecting the passenger after his removal from the train. It was held that while the carrier was not required to keep hospitals or nurses for sick or insane passengers, yet, if it had notice that a passenger was in a helpless condition, it was under the duty of exercising the reasonable and necessary offices of humanity toward him, until some suitable provision for his safety could be made; that the jury by its verdict had found that the depot-master had failed to exercise reasonable care in pro

30. See this duty forcibly stated in Conolly v. Railroad Co., 41 La. Ann. 57, where a passenger upon a street car was suddenly stricken with paralysis. He fell into the aisle and vomited, and the driver, who claimed that he thought the passenger was drunk, put him off upon the sidewalk and left him lying there uncared for for four hours on a drizzling cold December day. The passenger died and the carrier was held liable.

Where a sick passenger was ejected from the train on a cold night at a flag station where there was neither depot nor light provided, and he was found dead the next morning, having died from exposure to the elements, it was held that the carrier was liable. Eidson t. The Railway, Miss.

23 So. Rep. 369.

31. 67 Kan. 515, 73 Pac. Rep. 105.

viding for the passenger's protection, and that the carrier was therefore liable.

Sec. 993. Same subject-Blind and deaf passengers. As to the blind and the deaf, if their condition is known to the carrier, the same reasons which require more particularity in avoiding, as far as possible, the exposure of infants and disabled passengers to danger from which it is not to be supposed they would have the discretion or the ability to escape, would apply. And if the passenger be deaf, and the employees in charge of the train have notice of his condition, greater care and attention would be due him, than to those without such an infirmity, to see that he is informed of the arrival of the train at his destination.32 But if the carrier have no notice of the passenger's disability, there can be no reason for demanding that his vigilance in behalf of the passenger should be increased.33

Sec. 994. Duty toward intoxicated passengers.-While the carrier is not required to place a guard over a passenger who is intoxicated in order to prevent him from injuring himself, or from placing himself in a position of danger, if he have knowledge that the passenger is so intoxicated as to be incapable of protecting himself from danger, it would become his duty to exercise such special care and attention, beyond that owed to the ordinary passenger, as would be reasonably necessary, in view of the passenger's conduct or disposition of mind to encounter danger, to protect him from injury; and for a failure to do so, resulting in injury to him, the carrier would be liable.34 Where the brakeman on a passenger train had notice that a badly intoxicated passenger had staggered from the car in which he was riding, and had assumed a posi

tion upon the platform while the train was in motion, but made no effort to remove him to a place of safety, and he later fell from the platform and was injured, it was held that in failing to compel the passenger to occupy a place less exposed to danger, the carrier was guilty of negligence, and was therefore liable for the injury.35 And even though the passenger be so intoxicated as to justify his ejection from the train, if he is put off at a place which is naturally dangerous to one in his condition, and in consequence is injured, the carrier will be liable for such injury.36 But where the carrier has done his full duty in respect of the removal of a drunken passenger from the train, he will not be liable because the passenger afterwards wanders back upon the track and is struck and injured by a passing train.37

Sec. 995. (§ 665.) Degree of care required in the carriage of children. When the carrier accepts as a passenger a child of tender years, the test of negligence on the part of the carrier in his treatment of such a passenger will not be in all respects the same as when the passenger is one of mature years and understanding. Grown persons must be permitted to exercise their discretion, in a great measure, as to the positions they will occupy upon the carrier's conveyance, and to take upon themselves the risk of many dangers by their

Railroad Co. v. Carr, 47 Ill. App. 353. See also, Strand v. The Railway, 67 Mich. 380.

35. Fox v. The Railroad, Mich.

101 N. W. Rep. 624,

68 L. R. A. 336.

36. Atchison, etc., R. Co. v. Weber, 33 Kan. 543; Louisville, etc., R. Co. v. Sullivan, 81 Ky. 624; Railroad Co. v. Ellis' Adm'x, 97 Ky. 330, 30 S. W. Rep. 979; Johnson v. The Railroad, 104 Ala. 241, 16 So. Rep. 75, 53 Am. St. Rep. 39; Railroad Co. v. Johnson, 108 Ala. 62, 19 So. Rep. 51, 31 L. R. A. 372; Burke v. The Railroad, 108 Ill. App. 565.

37. McClelland v. The Railway, 94 Ind. 276; Louisville, etc., R. Co. v. Hawkins, 92 Ala. 241, 9 So. Rep. 271; Nash v. The Railway, 136 Ala. 177, 33 So. Rep. 932, 96 Am. St. Rep. 19; Gaukler. The Railway, 130 Mich. 666, 90 N. W. Rep. 660; Louisville, etc., R. Co. v. Logan, 88 Ky. 232, 10 S. W. Rep. 655, 21 Am. St. Rep. 332; Brown's Adm'r v. The Railroad, 19 Ky. Law Rep. 1873, 44 S. W. Rep. 648; Railway Co. v. Valleley, 32 Ohio St. 345; Missouri, etc., Ry. Co. v. Evans, 71 Tex. 361; Hamilton v. Railroad Co., 183 Penn. St. 638, 38 Atl. Rep. 1085.

negligent conduct, if they choose so to do, with full knowledge of the probable consequences, and no obligation rests upon the carrier to remonstrate or to forbid it.38 But in the case of a child who is being carried as a passenger, it would be incumbent upon the carrier, when the circumstances required it, to warn him against conduct upon his conveyance which exposed him to danger, and if he knowingly permitted him to occupy positions of danger upon it, he would be justly chargeable with negligence. And the same circumstances of negligence in taking on or putting off such a passenger, which might be scarcely blamable in the case of a grown person, might be reckless conduct if he were dealing with a child.39

Sec. 996. Duty to furnish assistance to passengers who have fallen from train.-The question has arisen as to the duty of the carrier to furnish assistance to a passenger who, through no fault of the carrier, has stepped or fallen from the train while in motion, and has thereby received an injury rendering him unable to properly care for himself. The rule seems to be that if the carrier's servants in charge of the train have knowledge that the passenger has been rendered helpless by a fall from the train, it is their duty, as representing the carrier, to stop the train and furnish him with assistance if such can be done without endangering the safety of the other passengers committed to its care; but that, if the train cannot be stopped a sufficient time to render such

38. See Aufdenberg v. The Rail way, 132 Mo. 565, 34 S. W. Rep. 485, citing Hutchinson on Carr.

39. Hemmingway 12. Railroad Co., 72 Wis. 42; Ridenhour v. Railway Co., 102 Mo. 270, 14 S. W. Rep. 760; Metropolitan Ry. Co. v. Moore, 83 Ga. 453; Crissey v. The Railway, 75 Penn. St. 83; Philadelphia, etc., Ry. v. Hassard, id. 367; East Saginaw Ry. v. Bohn, 27 Mich. 503; Wilton v. The Rail

road, 107 Mass. 108; Maher v. The Railroad, 67 N. Y. 52.

But where the conductor has promised that he will see that an eight-year-old female passenger will be put off at her destination, he is under no duty to see that she does not leave her seat during the journey and disembark from the train. Railroad Co. v. Jordan, 23 Ky. Law Rep. 1730, 66 S. W. Rep. 27.

assistance, without endangering the safety of other passengers by collision or otherwise, no obligation will rest on the carrier to do so.40 And though the passenger, by reason of his own imprudent conduct, is caused to fall from the train. upon the carrier's track, where he is exposed in a helpless condition to danger of injury from other trains, it will nevertheless be the duty of the servants in charge of the train, if they have such notice of his condition as a person of ordinary prudence would believe and act upon, to stop the train and remove him from the track, or, if that cannot be done without danger to the passengers or employees on the train, to notify those in charge of the train from which he is in danger, or to adopt some other reasonable precaution to avoid injuring him.41 But where the passenger, because of drunkenness, was ejected from the train, and, in attempting to again board it while it was in motion, he fell in such a manner that his arm was crushed beneath the wheels, the brakeman on the train being informed of the accident but refusing to stop and render him assistance, it was held that the hazard of the business in which the carrier was engaged prevented it from playing the part of the Good Samaritan to one with whom it had no contract relation, and that no legal obligation rested on it to stop the train for the purpose of ascertaining if he was injured.42

Sec. 997. (§ 554.) Who entitled to be considered a passenger. It would be impossible to frame a clear, precise legal definition of the word "passenger" which would embrace all its essential elements. The one usually accepted by the courts, when a definition has been attempted, is that a passenger is

40. Reed v. The Railroad, 104 Ky. 603, 47 S. W. Rep. 591, 44 L. R. A. 823; rehearing denied, 48 S. W. Rep. 416.

41. Railroad Co. v. Kassen, 49 Ohio St. 230, 31 N. E. Rep. 282,

16 L. R. A. 674. See also, Cincinnati, etc., R. Co. v. Cooper, 120 Ind. 469.

42. Railway Co. v. Saulsberry, 112 Ky. 915, 66 S. W. Rep. 1051, 56 L. R. A. 580.