se. A railroad company has no right to eject a trespasser from its cars while they are in rapid motion, so as to endanger his life.' A conductor is guilty of assault and battery for forcibly ejecting a passenger, without stopping the train, although the passenger was wrongfully thereon.' Even a trespasser cannot be ejected from a train without a reasonable regard for his safety." While a railway company is not bound to the same degree of care to mere strangers who are unlawfully upon its premises that it owes to a passenger, it is nevertheless not exempt from responsibility to such strangers for injuries arising from its negligence or from its tortious acts. A railroad company is liable for injuries to a trespasser on its cars caused by the peremptory order of its servant, accompanied by threats, to leave a train moving at a rate of speed which made it dangerous to do so." It is negligence to force a child to jump off a railway carriage in motion, and it is no defense to an action for injuries to a child from its being forced to jump off a moving railway carriage that it was a trespasser.

'Southern Kansas R. Co. v. Sanford, 11 L. R. A. 432, 45 Kan. 372. Mykleby v. Chicago, St. P. M. & O. R. Co. 39 Minn. 54.

State v. Kinney, 34 Minn. 311.

4 Arnold v. Pennsylvania R. Co. 6 Cent. Rep. 632, 115 Pa. 135.

'Sioux City & P. R. Co. v. Stout, 84 U. S. 657, 21 L. ed. 745; Pennsylornia Co. v. Tomey, 91 Pa. 256; Pennsylvania R. Co. v. Lewis, 79 Pa. 33; Hydraulic Works Co. v. Orr, 83 Pa. 332; Philadelphia & R. R. Co. v. Hum mell, 44 Pa. 375; Biddle v. Hestonville, M. & F. Puss. R. Co. 3 Cent. Rep. 404, 112 Pa. 551.

Gulf, C. & S. F. R. Co. v. Kirkbride, 79 Tex. 457.

Martin v. Reg. 2 Can. Exch. 328.

CHAPTER XI.

PROTECTION OF AND CARE OVER PASSENGER.

64. Passenger Carriers are not Insurers.

$65. Care over the Personal Safety of Passengers-Ordinary Perils. $66. Perils not Incident to Ordinary Modes of Travel.

$67. Duty to Passengers Suffering from Physical Disability.

864. Passenger Carriers are not Insurers.

There is a wide distinction between contracts for the conveyance of passengers and those for the conveyance of goods. In the latter case, the parties are liable at all events, unless the goods are destroyed or damaged by the act of God or the public enemy; whilst in the former case, they are only responsible to their passengers in cases of express negligence.' Carriers of passengers for hire are not responsible in all particulars, like common car. riers of goods. They are not insurers of personal safety against all contingencies except those arising from the acts of God and the public enemy. For an injury happening to the person of a passenger by mere accident, without fault on their part, they are not responsible, but are liable only for want of due care, diligence, or skill. Fidelity and carefulness are essential duties to the employment of a common carrier in respect to his service as well as employment which cannot be abrogated.'

While the carrier does not warrant the safety of the passenger, as the common carrier does that of the goods, he is, nevertheless, bound to provide for his safe conveyance "as far as human care and foresight will go.'

994

'Crofts v. Waterhouse, 11 Moore, 133.

Bennett v. Dutton, 10 N. H. 481.

New York Cent. R. Co. v. Lockwood, 84 U. S. 17 Wall. 357, 21 L. ed. 627. Derwort v. Loomer, 21 Conn. 245; Hall v. Connecticut River 8. B. Co. 13 Conn. 319; Laing v. Colder, 8 Pa. 479; Sullivan v. Philadelphia & R. R. Co. 30 Pa. 234; Caldwell v. Murphy, 1 Duer, 233; Brand v. Schenectady & T. R. Co. 8 Barb. 368; Ingalls v. Bills, 9 Met. 1; Hegeman v. Western

Carriers of passengers are not insurers, but the law holds them to some responsibility and requires of them to provide for their safe conveyance, so far as the same is practicable by the exercise of human care and foresight. They are not insurers of the lives or persons of their passengers, but are bound to the exercise of the highest degree of care and diligence in the conduct of their business, and are accountable for the slightest negligence involving the safety of their passengers, notwithstanding their exemptions from the rules pertaining to common carriers of property. An instruction that "strict diligence" is required of carriers in relation to passengers is proper.'

A common carrier of passengers is not under the same obligation as to care and diligence in guarding against injuries to strangers, especially to trespassers, that it is under to guard against injuries to passengers. Nor does his liability to them come under the law regulating carriers, but is governed by the general principle of conforming conduct to the rights of others,

R. Corp. 13 N. Y. 9; Maverick v. Eighth Ave. R. Co. 36 N. Y. 378; Carroll v. Staten Island R. Co. 58 N. Y. 126; Caldwell v. New Jersey S. B. Co. 47 N. Y. 282; Mc Padden v. New York Cent. R. Co. 44 N. Y. 478; Sherlock v. Alling, 44 Ind. 184; Thayer v. St. Louis, A. & T. H. R. Co. 22: Ind. 26.

'Ladd v. Foster, 31 Fed. Rep. 827; Jeffersonville R. Co. v. Hendricks, 26 Ind. 228; The Oriflamme, 3 Sawy. 397; Dunn v. Grand Trunk R. Co. 58 Me. 187; Tuller v. Talbot, 23 Ill. 357; Pittsburg, C. & St. L. R. Co. v. Thompson, 56 Ill. 138; Stokes v. Saltonstall, 38 U. S. 13 Pet. 181, 10 L. ed. 115; Philadelphia & R. R. Co. v. Derby, 55 U. S. 14 How. 468, 14 L. ed. 502; The New World v. King, 57 U. S. 16 How. 469, 14 L. ed. 1019; Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 291, 23 L. ed. 898; Johnson v. Winona & St. P. R. Co. 11 Minn. 296; McKinney v. Neil, 1 McLean, 540; Maury v. Talmadge, 2 McLean. 157; Stockton v. Frey, 4 Gill, 406; Farish v. Reigle, 11 Gratt. 697; Meier v. Pennsylvania R Co. 64 Pa. 225; Edwards v. Lord, 49 Me. 279; New Jersey R. Co. v. Kennard, 21 Pa. 203; Pendleton v. Kinsley, 3 Cliff. 416.

*Alabama G. S. R. Co. v. Hill (Ala.) 47 Am. & Eng. R. Cas. 500; Cornwall v. Sullivan R. Co. 28 N. H. 161. See Taylor v. Grand Trunk R. Co. 48 N. H. 304; Hall v. Connecticut River S. B. Co. 13 Conn. 319; Fuller v. Naugatuck R. Co. 21 Conn. 557, 576; Maverick v. Eighth Ave. R. Co. 36. N. Y. 378; Carroll v. Staten Island R. Co. 58 N. Y. 126; Sullivan v. Philadelphia & R. R. Co. 30 Pa. 234; Toledo, W. & W. R. Co. v. Apperson, 49 Ill. 480; Pittsburg, C. & St. L. R. Co. v. Thompson, 56 Ill. 138; Wheaton v. North Beach & M. R. Co. 36 Cal. 590; Union Pac. R. Co. v. Hind, T Kan. 380, 392; Jeffersonville R. Co. v. Hendricks, 26 Ind. 228; Johnson v. Winona & St. P. R. Co. 11 Minn. 296; Virginia Cent. R. Co. v. Sanger, 15 Gratt. 230; Baltimore & O R. Co. v. Wightman. 29 Gratt. 431; Baltimore & O. R. Co. v. State, 29 Md. 252; Kansas Pac. R. Co. v. Miller, 2: Colo. 442; George v. St. Louis, I. M. & S. R. Co. 34 Ark. 613. Chicago, B. & Q. R. Co. v. Mehlsack, 131 Ill. 61.

and using reasonable precautions to avoid their injury.' A trespasser on a train cannot be treated in a willful, wanton, or malicious manner. But an action cannot be maintained against a railroad company by one who has been ejected from a train for refusal to pay fare or to produce a ticket or to leave the train on account of insulting or abusive language used by the conductor, unless proof is introduced establishing the relation of passenger and carrier.' § 65. Care over the Personal Safety of Passengers -Ordinary Perils.

What degree of care the common carrier must observe for the safety of a passenger on its train, to exonerate it from liability for injury, is a question of law. The rule of law is quite well understood that, as to the selection of suitable machinery and cars, the fitness of the road,—both as to manner of construction and materials used, and in the use of all appliances adopted for the government or moving of trains, and as to the selection or retention of competent and faithful servants, the carrier of passengers is required to use the highest reasonable and practicable skill, care and diligence.

So far as the machinery and cars furnished for the carriage of passengers, the fitness of the roadbed, and the competency and faithfulness of the servants employed, and in the use of the best known mechanical appliances to insure safety, are concerned, the passenger must rely solely on the carrier, and can do nothing to insure his personal safety. It is for that reason the carrier in this respect is held to the highest reasonable and practicable skill and diligence. The safety of passengers requires the strict and rigid observance of this rule by all carriers by rail or otherwise. In respect to carrying passengers, a railroad company is bound to exercise all the care and skill which human prudence and oversight can suggest to secure the safety of their passengers."

3

Snyder v. Natchez, R. R. & T. R. Co. 42 La. Ann. 302; Chicago, B. & Q. R. Co. v. Mehlsack, 131 Ill. 61, 41 Am. & Eng. R. Cas. 60.

Atchison, T. & S. F. R. Co. v. Gants, 38 Kan. 608.

Memphis &C. R. Co. v. Denson, 85 Tenn. 627.

4Chicago & A. R. Co. v. Pillsbury, 11 West. Rep. 761, 123 Ill. 9.

Dlabola v. Manhattan R. Co. 29 N. Y. S. R. 149; Fairchild v. California Stage Co. 13 Cal. 599; Farish v. Reigle, 11 Gratt. 711; Boyce v. California Stage Co. 25 Cal. 468; Lawrence v. Green, 70 Cal. 417; Maverick v. Eighth

Because a passenger's life and safety are necessarily intrusted in a great degree to the care of the carrier who transports him, the law deems it reasonable that the carrier should be bound to exercise the utmost care and diligence in providing against those serious injuries which human care and foresight can guard against.' This rule is held in England and all over the United States. It applies, not only to carriers who use steam railroads, but to those who use horse railroads, stage coaches, steamboats and sailing vessels. It applies at all times when and in all places where the parties are in the relation to each other of passenger and carrier; and it includes attention to all matters which pertain to the business of carrying the passenger. It is said that "a carrier of passengers is bound to use the utmost care, skill and diligence in everything that concerns the safety of passengers."'

Carriers, though not insurers of passengers, are bound to exercise towards them the highest degree of care of a very prudent person." The omission of a carrier in matters involving hazard of serious injury to exercise the highest degree of practicable care constitutes negligence; and its measure of duty is not to be determined by what a reasonable and prudent person would ordinarily do under the circumstances. Railroad companies engaged in carrying passengers must exercise the highest degree of care, diligence and skill known to careful, diligent, and skillful persons engaged in such business. The words "utmost care and diligence," do not

Ave. R. Co. 36 N. Y. 378; Bowen v. New York Cent. R. Co. 18 N. Y. 408; Deyo v. New York Cent. R. Co. 34 N. Y. 9; Taylor v. Grand Trunk R. Co. 48 N. H. 313; Philadelphia & R. R. Co. v. Derby, 55 U. S. 14 How. 468, 14 L. ed. 502; The New World v. King, 57 U. S. 16 How. 474, 14 L. ed. 1021; Stokes v. Saltonstall, 38 U. S. 13 Pet. 181, 10 L. ed. 115; Ingalls v. Bills, 9 Met. 1; McElroy v. Nashua & L. R. Corp. 4 Cush. 400; Edwards v. Lord, 49 Me. 279; Hall v. Connecticut River S. B. Co. 13 Conn. 320; Derwort v. Loomer, 21 Conn. 253; Fuller v. Naugatuck R. Co. 21 Conn. 557, 576; Hadley v. Cross, 34 Vt. 586; Clark v. Barrington, 41 N. H. 51; Pennsylvania R. Co. v. Aspell, 23 Pa. 147; Frink v. Potter, 17 Ill. 406; Readhead v. Midland R. Co. L. R. 2 Q. B. 412, L. R. 4 Q. B. 379; Northern Pac. R. Co. v. Herbert, 116 U. S. 651, 652, 29 L. ed. 760; Kelly v. New York & S. B. R. Co. 1 Cent. Rep. 874, 109 N. Y. 44; Grand Rapids & I. R. Co. v. Huntley, 38 Mich. 537; Baltimore & O. R. Co. v. State, 29 Md. 252.

'Chicago, B. & Q. R. Co. v. Damerell, 81 Ill. 450.

*Readhead v. Midland R. Co. L. R. 2 Q. B. 412.

O'Connell v. St. Louis Cable & W. R. Co. 106 Mo. 482.

Louisville, N. A. & C. R. Co. v. Snider, 3 L. R. A. 434, 117 Ind. 435; Chicago & A. R. Co. v. Pillsbury, 11 West. Rep. 757, 123 Ill. 9.

$ Montgomery & E. R. Co. v. Mallette, 92 Ala. 409; Chicago City R. Co. v. Engel, 35 Ill. App. 490.