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The plaintiff had a right, in his movements in and about that train, to assume that the conductor and engineer and brakemen, knowing that they had on board passengers liable to injury from the manner of running and stopping such a train, would have their apprehension quickened, their vigi. lance and caution increased, in proportion to the risk to the lives and limbs of its passengers. So that the plaintiff, as he claims, not reasonably anticipating on the sound of the whistle that the train in motion would make a violent lurch or movement backward, started to look out; and, while the law would exact of him an increased degree of care on thus getting to his feet, it seems to me that it is not maintainable, on the

now recognized limitation and application of the doctrine of contributory negligence, that it was per se negligent for him to get upon his feet; and this, for two reasons: Because the evidence fails to show that such sudden and violent stopping, as occurred in going into the station, was so usual that a passenger, with no more knowledge than the plaintiff had, should be held to reasonably anticipate the shock; and because plaintiff, in rising from his seat, had a right to rely upon the presumption that the engineer would do his duty by stopping his train so as not to produce unusual hazard, either by beginning the effort to slow up further back, or else calling to his aid the hand brakes, which the evidence tends to show was not done in this case. The evidence of the conductor, Smith, tended to show that while he had in his experience witnessed as sudden and violent halt as claimed by the plaintiff, yet it was unusual, and could have been largely prevented, or rendered unnecessary, by gradually letting on the air, and calling to his assistance the hand brakes. As before suggested, when the defendant admitted to passage on this caboose the plaintiff, it took upon itself the obligation which the law imposes upon a carrier of passengers, which is the exercise of “the utmost care and diligence of very cau. tious persons; and, of course, they are responsible for any, even the slightest, neglect." Story, Bailm. $ 601. "For the law will, in tenderness to human life and human limbs, hold the proprietors liable for the slightest negligence, and will compel them to repel, by satisfactory proofs, every imputation thereof." Id. $ 6018; McKinney v. Neil, 1 McLean (C. C.), 540 ; Stokes v. Saltonstall, 13 Pet. (U. S.), 181. In other words, it was bound to the exercise of a higher degree of care and caution, in running and stopping its train, towards a passenger on a freight train than if the cargo consisted of inanimate matter or live stock. So that on approaching a station, knowing, as the engineer did, the composition of his train of 46 cars, with the air brake working upon a few only of the forward cars, and the others dependent more or less upon the application of the hand brakes, and the liability of such a train in slacking up to shock and disturb the rearmost car in which there were passengers, (although it may be conceded that more or less violence in halting was necessarily incident to the management of such a train,) the engineer was under obligation to use every precaution and means at his command to prevent the unnecessary exposure of the passengers to injury.

Looking at the facts and circumstances attending this injury, it seems to me that it was peculiarly a question of fact for the court to submit to the jury, as it did in its charge, as to whether or not the plaintiff himself in his conduct was heedless or negligent of the law of self-preservation, and unnecessarily exposed himself to a known or apparent danger, or whether or not the engineer and other servants of the de. fendant exercised the utmost vigilance and care to prevent the unnecessary exposure of its passenger to injury. As said in Chicago, B. & Q. R. Co. v. Hazzard, 26 Ill. 373–387: “The care required is not that care without the exercise of which accidents may happen; as, for example, after a passenger is received on board he would be safer-less liable to accident -if locked up in the car, or chained to one of the seats or other fixture so as to deprive him of locomotion, moving from car to car. This would be the very utmost degree of care and caution ; but that is not required, so that the epithet

utmost' must be taken with some qualification. * Boyce v. Anderson, 2 Pet. (U. S.), 150,

Chief Justice MARSHALL held that the responsibility of the carrier (in the instance of a loss of negroes in transport by the upsetting of the boat's yawl) should be measured by the law applicable to passengers rather than that applicable to the carriage of common goods, and that the rule of care is that of ordinary care,-the care which all bailees for hire owe their employer."

And this rule in Stokes v. Saltonstall, supra, was afterwards extended so as to make the carrier liable "if a disaster was occasioned by the least negligence or want of care and prudence on the part of the defendant." The case at bar is distinguishable in its facts from the case in 26 Ill., supra, in this: that there the injury occurred by reason of the passenger unnecessarily and carelessly passing to and standing on the platform of the car as it halted, and the violence in movement which resulted therefrom was occasioned by the engineer of the train letting on a large quantity or force of steam, which in his best judgment was necessary to overcome the friction of frogs and switches. In that case it was held that the company would not be liable if in doing so the engineer

* In

exercised a reasonable discretion; and it was in recognition of this rule that Judge HALLETT, in his charge to the jury in this case, directed them that the plaintiff could not recover, if the injury resulted in the act of starting from the station, and in applying such sudden force of steam as in his judgment was necessary to loosen the binding brakes; whereas, the case at bar went to the jury, to ascertain whether or not the defendant in stopping its train on going into the station did it in an unusual, unnecessary, or negligent manner. In my opinion, the peculiar state of proofs respecting this issue well warranted the action of the court in taking thereon the opinion of the triers of the fact.

The motion for a new trial was overruled, and judgment entered on the verdict.

HALLETT, J., concurs. Contributory Negligence-Passenger in Freight Train Standing Up,-See Harris v. Hannibal & St. J. R. Co. (Mo.), 27 Am. & Eng. R. Cas. 216; Wallace v. Western North Carolina R. Co. (N. Car.), 34 Id. 553, 37 Id. 159; Smith v. Richmond & D. R. Co. (N. Car.), 34 Id. 557.

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CAMPBELL. (Texas Supreme Court, Fanuary 21, 1890.) Freight Train-Person Travelling on Against Rules and Conductor's Orders. -If a person is informed by the conductor that the company's rules prohibit passengers from travelling upon freight trains, and such person neve ertheless enters the train, he is not a passenger and cannot recover for injuries sustained, although a brakeman may have told him to get on the train subsequently to the refusal of the conductor to carry him.

Personal Injuries—Damages-Physician's Services.-In an action for personal injuries, the plaintiff can only recover the reasonable value of his physician's services, and not the amount of the bill made out by him and based upon the possibilities of a prospective law suit.

APPEAL from District Court, Washington County.
J. W. Terry for appellant.

HOBBY. J.—This is a suit by the appellee, Campbell, who was plaintiff below, for damages for personal injuries received

in a collision between two portions of a freight

train, in the city of Brenham, upon which he alleged he had taken passage for the purpose of going to Kin

Facts.

ney. He testified that he was in Brenham on the night of the 30th of March, 1887, and expected to return to his home at or near Kinney. He had ridden on freight trains on sev. eral occasions to and from Brenham and Kinney. The freight train pulled into the depot at Brenham on the way to Kinney. He asked a man standing on the platform, with a lantern in his hand, if he had charge of the train, who answered affirmatively, and gave him permission to get on. Plaintiff took a seat in the caboose, and expected, and was prepared to pay his fare: In a few moments the engine began to back the car. Plaintiff rose from his seat, and started to the door of the caboose, to ascertain the cause of the backing, when the collision occurred, and he was thrown out on the ground, and bruised. He did not recollect exactly how he was hurled out of the car. His coat caught on to the brake at the end of the caboose. There was testimony that some freight trains carried passengers and others did not.

Martin, the engineer who was in charge of the train, testi. fied that after the train arrived at Brenham he cut the engine loose from the main train, and attached the caboose

Engineer's to it, and pulled to the tank for water. While there

testimony. plaintiff insisted on riding to Kinney, and got on the engine. After telling him he could not three times, he got off, and he saw no more of plaintiff until he commenced backing down towards the north end of the switch, when he saw the plaintiff standing on the platform of the caboose nearest the engine. Could see him distinctly, as the head. light shone directly in his face. Witness stopped the engine and caboose, waiting for orders from conductor, and while so waiting a portion of the main train of cars broke loose, and ran down with considerable force, struck the caboose, and drove it up on the pilot of the engine, and threw plaintiff from the platform. When witness saw the situation, he reversed his engine so as to give plaintiff a chance to jump off. The cars would not have broken loose and run back had the brakes been set on them. It was negligence not to have them 'set. Plaintiff was inside of the caboose. The train was not allowed to carry passengers. There was proof that he had stated to several persons, a few days after the injury, that he “got full while at Brenham. Was left by the passenger train. Tried to come home on a freight. Was put off by the engineer. Then went to the conductor, who refused to let him ride. Afterwards he met a man on the platform with a lantern, who told him to get on the train. He got on the rear end of the caboose, and could have jumped off, but he remained standing, and got hurt."

The conductor testified that plaintiff asked him to let him

ride on the train to Kinney. He told him he could not ride

on the train, as he had no authority to do so, and Conductor's

would not carry passengers. He gave no one pertestimony.

mission to ride on the train. The brakeman had no authority to allow any one to ride. Both doors of the caboose were locked. Two brakemen were inside, both of whom had lanterns. There were 14 cars in the collision. The brakeman on the north end of the cars failed to set the brakes, and this caused the collision." Plaintiff denied telling any one that he was on the platform of the caboose at the time of the accident. It was admitted that the conductor and brakeman were discharged on account of the accident. The jury returned a verdict for $150 actual and $350 punitory damages. No exemplary damages were claimed in the petition, and judgment was rendered for the former, the latter having been remitted. The case is before us on appeal, but there is no appearance for appellee.

The refusal of the court below to give the following charges requested, is assigned as error: "(1) If you believe from the

evidence that the freight train in question was proInstructions

hibited from carrying passengers, and that when requested and refused.

plaintiff applied to the conductor for passage on

said train he was informed by the conductor that he could not ride on that train, then you will find for the defendant, although you may believe that a brakeman or some other person afterwards told the plaintiff to get on the train. (2) If you believe from the evidence that by the rules of the company passengers were forbidden to be carried on the train in question, then the presumption is that the plaintiff was an intruder, and without lawful right to be there. This presumption may be rebutted by the plaintiff, showing that while the rules forbid the transportation of passengers upon such trains, yet with knowledge of the company, and without objection on its part, they are habitually permitted to take passage on such trains. The company, through its proper officers, having the right to make these rules, may, through the same officers, relax or dispense with them, and the public are authorized to consider them dispensed with when not practically enforced. The conductor cannot relax these reg. ulations without the consent of the company, because he is the agent whose special duty it is to see that they are en. forced, and any relaxation of the rules on his part would be a disobedience of the orders of his superiors. There is no proof of gross negligence in this case, and hence if you find that, as defined in the charge, the plaintiff was not a lawful passenger on the car, you will find for defendant.

These instructions are in the language of our supreme court

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