Negligence cannot be conclusively established by a state of facts upon which fair-minded men may well differ."

It is insisted that because the plaintiff was upon a freight train that he must take notice of the manner of running and managing such trains; and that he must have known from observation that such trains, on approaching stations, were liable to sudden jerks in the effort to stop them, which rendered it unsafe for one to get upon his feet on approaching a station; and that no one so getting upon his feet, from any cause short of absolute necessity, could recover for being knocked from his feet by the halting of the train, no matter how great the violence of the halt, and no matter how unnecessary its suddenness. Negligence is always a relative question. It is a question of ordinary care. It is the caution and vigilance which reasonable men exercise under like circumstances. Cayzer v. Taylor, 10 Gray (Mass.), 280; Ford v. Fitchburg R. Co., 110 Mass. 256; Flynn v. Kansas City, St. J. & C. B. R. Co., 78 Mo. 202; 18 Am. & Eng. R. Cas. 23. Or, as it is aptly expressed in Cleveland, C. & C. R. Co. v. Terry, 8 Ohio St. 581, it is that degree of care which persons of ordinary care and prudence are accustomed to use and employ, under the same or similar circumstances, in order to conduct the enterprise in which they are engaged to a safe and successful termination." It seems to me as rather extreme doctrine to say that a passenger on a caboose attached to a freight train on its approach to a station, actuated by the natural curiosity to look out to observe the town and surroundings, in the absence of any windows permitting an outlook, would be heedless of his own personal safety simply because he got upon his feet under such circumstances; unless it can be maintained that the habit of such cars on approaching stations was to stop so suddenly and violently as to make it perilous for a passenger to be upon his feet at all at such a time, and that this fact was known to the plaintiff. Although this was a freight train, so long as the defendant admitted passengers upon it there was a mutual obligation imposed upon carrier and passenger. While a passenger entering upon such a vehicle of conveyance was subject to the inconvenience and perils ordinarily incident to the usual manner of handling such trains, yet he had a right to presume that the agents and servants in charge of this train would also perform their duty towards him and the public. "And it is not to be denounced as negligence for him to assume that he is not exposed to a danger which can only come to him through the disregard of duty and law on the part of another. This is just and reasonable." Kellogg v. Chicago & N. W. R. Co., 26 Wis. 223; Moberly v. Kansas City, St. J. & C. B. R. Co., 17 Mo. App. 542.

A. & E. R. Cas.-7

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 vigilance 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. § 601a; 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 heednegligent 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 defendant 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 carto 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. * * *In 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 pruthe 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

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dence on

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.

GULF, COLORADO & SANTA FE R. Co.

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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 nevertheless 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 several 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 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.

car.

Engineer's

testimony.

Martin, the engineer who was in charge of the train, testified that after the train arrived at Brenham he cut the engine loose from the main train, and attached the caboose to it, and pulled to the tank for water. While there 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 headlight 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

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. Tried to come home on a freight. Was left by the passenger train. Was put off by the engiThen went to the conductor, who refused to let him 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."

neer. ride.

The conductor testified that plaintiff asked him to let him