former having been angered because the passenger rang up the conductor.'

If the servant's act be one not authorized by the master, or one not done in the exercise of a power fairly arising from the character of his employment, but be an act done for the use or benefit of the master, then the master may doubtless ratify the act of the servant through which a tort was committed; and it may be that, in such case, the ratification of the master would fix upon him the bad motive which prompted the servant's act, and thus impose on the master a liability even for exemplary damages. It has been so held by courts that hold the master liable for exemplary damages in all cases in which the servant is. So ratification of illegal act will render the company liable, as retaining an employé with full knowledge of the unlawful act. The company may pay

damages and retain the employé.'

'Lyons v. Broadway & S. A. R. Co. 32 N. Y. S. R. 232,

Bass v. Chicago & N. W. R. Co. 42 Wis. 654.

Gasway v. Atlanta, W. P. R. Co. 58 Ga. 216; Bass v. Chicago & N. W. R.

Co. 39 Wis. 636.

Hanson v. European & N. A. R. Co. 62 Me. 84.

CHAPTER XX.

CONTRIBUTORY NEGLIGENCE.
IBUTORY

115. Disobeying Regulations.

116. When will Preclude Recovery.

§ 117. At Stations or Approaching or Leaving them.
$118. About Station Platforms and Steamer Landings.
$119. In Entering Train in Motion.

§ 120. Passing between Cars in Motion.
$121. Position of Passenger in Car.

$122. Exposing the Person without the Car.
$123. Traveling on Other than Passenger Cars.
$124. On Platform of Car.

$125. Injury about Passenger Elevators.

§ 115. Disobeying Regulations.

The carrier, as has already been shown, has authority to make reasonable rules and regulations for the proper management and orderly conduct of its business, and to secure the safety and promote the comfort of passengers.' Regulations which in fact contribute to accomplish these purposes will be deemed reasonable, unless they are unnecessarily burdensome and oppressive upon the passenger. If they tend to accomplish the legitimate end in view they are prima facie reasonable and legal. Otherwise the burden of proving their reasonableness is on the carrier.3

The fact that one who asked a ticket agent for a ticket on a limited or fast train was refused a ticket because the train was not allowed to stop at his destination is sufficient notice to him that 'South Florida R. Co. v. Rhoads, 3 L. R. A. 734, 25 Fla. 40; McRae v. Wil mington &W. R. Co. 88 N. C. 526; Marriott v. London & S. W. R. Co. 1 C. B. N. S. 499; Sandford v. Catawissa, W. & E. R. Co. 24 Pa. 378; Central R. Co. of New Jersey v. Green, 86 Pa. 421; Pittsburg & C. R. Co. v. McClury, 56 Pa. 294; McDonald v. Chicago & N.W. R. Co. 26 Iowa, 124; Wills v. Lynn & B. R. Co. 129 Mass. 351; Alabama G. S. R. Co. v. Hawk, 72 Ala. 112; Creed v. Pennsylvania R. Co. 86 Pa. 139; Pennsylva nia R. Co. v. Zebe, 33 Pa. 326; Powell v. Pennsylvania R. Co. 32 Pa. 414. *Com. v. Power, 7 Met. 596; State v. Chovin, 7 Iowa, 204, 208. Peek v. North Staffordshire R. Co. 10 H. L. Cas. 473.

any agreement the conductor might afterwards make to put him off at his destination would be a violation of the rules of the company, so as to exempt the company, which provided another train which made stops at all stations, from liability, where he paid fare to the conductor, who agreed to let him off at, but carried him beyond, his destination.'

If a passenger is injured in consequence of his violation of a known and reasonable regulation of the carrier, he cannot recover damages. Contributory negligence which will defeat recovery has been already defined.' But one who gets on a horse car with the intention of becoming a passenger is not a trespasser, even though no fare has been collected of him before he sustains an injury, simply because he has violated a rule of the company as to the mode of getting on.*

The test of contributory negligence or want of due care is not found in the failure to exercise the best judgment or to use the wisest precaution, but allowance may be made for the influences ordinarily governing human action, as what would under some circumstances be want of reasonable care may not be such under others. But the rule that, when danger has come suddenly upon a person, and he is called upon to act instantly and without time to reflect, it is not negligence to make a mistake, does not apply where the party injured is placed in imminent peril by his own fault. While one who sustains injury through the negligence of another may recover damages therefor although he contributed to such injury, if he was not in fault in so doing,' yet where a

'Alabama G. S. R. Co. v. Carmichael, 9 L. R. A. 388, 90 Ala. 19, 44 Am. & Eng. R. Cas. 286.

'Creed v. Pennsylvania R. Co. 86 Pa. 139; Werle v. Long Island R. Co. 98 N. Y. 650; Pennsylvania R. Co. v. Langdon, 92 Pa. 21; McDonald v. Chicago & N. W. R. Co. 26 Iowa, 124; Wills v. Lynn & B. R. Co. 129 Mass. 351. 'Ante, § 12.

North Chicago St. R. Co. v. Williams (Ill.) Jan. 18, 1892. "Lent v. New York & M. R. Co. 55 Hun, 180; McIntyre v. New York Cent. R. Co. 37 N. Y. 287; Lowery v. Manhattan R. Co. 99 N. Y. 158; Sherry v. New York Cent. & H. R. R. Co. 6 Cent. Rep. 357, 104 N. Y. 652. See note to Louisville, N. A. & C. R. Co. v. Lucas (Ind.) 6 L. R. A. 193. Noyes v. Southern Pac. R. Co. 92 Cal. 285; Grand Rapids & I. R. Co. v. Ellison, 117 Ind. 234.

South Covington & C. St. R. Co. v. Ware, 84 Ky. 267. See Stokes v. Saltonstall, 38 U. S. 13 Pet. 181, 10 L. ed. 115; Pierce, Am. Railroad Law, 1st ed. 475; South Western R. Co. v. Paulk, 24 Ga. 356; Richmond & D. R. Co. v. Morris, 31 Gratt. 200; Frink v. Potter, 17 Ill. 406.

party is put in a position of immediate danger, he is bound to exercise the prudence and care which characterize the conduct of a prudent man, under such conditions; and if he acts unreasonably or rashly, or becomes frightened at a trivial circumstance, he cannot recover damages.'

Contributory negligence has no relevancy to an action for eject. ing a passenger from a railroad train with excessive force and violence, because such an act is essentially unlawful.' But there can be no recovery for injuries on the ground of force employed, where a passenger was properly ejected from a car and he received all his injuries after leaving the car and as a result of his holding onto the railing in resisting the force removing him, and no more force is shown to have been used than was necessary for the purpose.*

A passenger upon a railroad is bound to comply with the rules. and orders of the company and its agents, as much when going from the cars to a place of safety beyond the railroad track as when actually on board the train. But contributory negligence cannot be imputed to a passenger because he does not anticipate culpable negligence on the part of the carrier; he has the right to presume that the employés will use the degree of care which persons of ordinary prudence are accustomed to employ under the same or similar circumstances."

A woman who enters a car left standing, with brakes set, on the grounds of a sanitarium, a few minutes before the time for it to start and when no one is in charge of it, but when other women and children are already in it, is not guilty of negligence, as matter of law, which will prevent her recovery for injuries occasioned by the starting of the car when a small boy let off the brakes, which were negligently left unguarded;—especially where notice of rules against entering the car had never been published or posted, and she had no actual knowledge of them. A passenger is not bound to abandon the use of a station plat

'South Covington & C. St. R. Co. v. Ware, 84 Ky. 267. Chicago, St. L. & P. R. Co. v. Bills, 118 Ind. 221.

8 Wright v. California Central R. Co. 78 Cal. 360.

'Warren v. Fitchburg R. Co. 8 Allen, 232.

'Franklin v. Southern California M. R. Co. 85 Cal. 63.

•Western Maryland R. Co. v. Herold (Md.) 14 L. R. A. 75.

form which is not in good repair, and seek some other way of entering and leaving the cars, if it is still held out by the company as safe, and used by the public. The fact that a person may have seen a station platform out of repair at one time does not bind him to carry such defect in mind upon all future occasions when approaching or leaving a train at such place.' But where a railroad station has been sufficiently lighted to protect passengers using reasonable care, one suffering injury cannot recover where experience has shown no necessity for additional light." Nor can one claim damages for injury suffered from imprudent conduct during a withdrawal of the light for temporary purposes.

But while the passenger may, in the absence of knowledge that the carrier has been guilty of negligence in a particular matter that may endanger his safety, unless he use extra caution and care, conduct himself with only ordinary prudence; on the other hand the carrier may indulge the same reasonable presumption toward the passenger's conduct. A railroad employé has the right to presume that a passenger is conducting himself with prudence, and is not placing himself in an unnecessarily dangerous position, and is not bound to see that such is the case; and the fact that he could have discovered the danger will not render the com. pany liable. For a passenger to rest his hand upon the jamb upon which the door of a car swings, so that his hand is injured by a brakeman suddenly closing the door, is such negligence on the passenger's part as will prevent a recovery.*

A passenger who unnecessarily steps off a moving train in the dark without an invitation or assurance by the railroad company. that it is safe so to do, is negligent per se.*

When a proper place of exist for passengers is provided, a warning to a passenger not to leave at another part of the boat is a reasonable regulation which the passenger is bound to obey; and his disobedience thereof will, in the absence of a good reason for it, constitute contributory negligence and prevent his recovPennsylvania Co. v. Marien, 7 L. R. A. 637, 123 Ind. 415.

2

Laflin v. Buffalo & S. W. R. Co. 106 N. Y. 136.

Bennett v. New York, N. H. & H. R. Co. 57 Conn. 422; Reed v. Axtell, 84 Va. 231.

4Texas & P. R. Co. v. Overall, 82 Tex. 247.

$ England v. Boston & M. R. Co. 153 Mass. 490.