contrary, the undisputed evidence shows that, in spite of warnings from those in his immediate vicinity, he suddenly, without precaution, precipitated himself into a position of great and obvious danger. He no doubt had a right to expect that any cars which might be upon the other track would not run at a dangerous rate of speed, and would be lawfully managed; but this expectation could not excuse him from the exercise of all proper care, and does not relieve the plaintiff from the obligation of proving, by positive affirmative evidence, that the deceased was in fact in the exercise of due diligence. As there was no such evidence, a verdict for the defendant was rightly ordered. Judgment on the verdict.20

BRUNSWICK & W. RY. CO. v. MOORE.

(Supreme Court of Georgia, 1897. 101 Ga. 684, 28 S. E. 1000.) ATKINSON, J.30 The questions made in this case arose upon the following state of facts: Aaron Moore, as next friend of his son William, sued the railroad company, and obtained a verdict for $3,000. Defendant made a motion for a new trial, which being overruled, it excepted. The material testimony introduced upon the trial may be stated as follows: William Moore testified that he was 17 years of age; that he and eight other boys entered defendant's train at Alapaha, and traveled thereon as passengers to Willacoochee, a distance of 11 miles, on the night of February 9, 1896. The train stopped at Willacoochee not more than four or five seconds, just long enough for Moore to leave it. He had just reached the ground, and taken two steps, when a shot from a pistol, fired by the conductor of the train, struck him in the leg.

*

*

If he were a passenger at the time the injuries were inflicted upon him for which he brings this action, he was entitled to recover, for he is entitled, by virtue of his contract of passenger carriage, not only to be protected against the consequences of the negligent acts of the company's agents, resulting from the omission to perform its duties. towards the passenger, but he is likewise entitled to be protected against the wanton and willful acts of violence wrongfully committed upon his person by the servants of the company during the continuance of the relation instituted by his contract with the company. Whether or not he was a passenger at the time the injuries were inflicted upon him depends upon whether, at that time, it had

29 Acc. Indianapolis, etc., Co. v. Tenner, 32 Ind. App. 311, 67 N. E. 1044 (1903); Hanson v. Urbana & C. R. Co., 75 Ill. App. 474 (1898); Street R. R. v. Boddy, 105 Tenn. 666, 58 S. W. 646, 51 L. R. A. 885 (1900). Compare Atlanta, etc., Co. v. Bates, 103 Ga. 333, 30 S. E. 41 (1898).

30 Part of the opinion has been omitted.

completed its contract of carriage with him, and, in the legal sense, delivered him at the point of destination. There was no voluntary abandonment by this passenger of his right safely to be delivered at the point of destination in accordance with the contract under which he entered the company's cars. Its servants did not, for any improper conduct upon his part, seek to expel him from the car, and thus terminate the relation of carrier and passenger; so that the relation of carrier and passenger, having commenced, continued until the carrier had fully performed its contract of carriage.

31

It does not satisfy the requirements of this contract that the passenger should have been safely transported to the point at which he was expected to, and did, leave the car of the company. Until he had actually left, or had had a reasonable time within which to leave, the premises of the company at the point of destination, he was still a passenger, and entitled, as against the company, to all the rights and immunities of a passenger.3: This was the rule laid down by the court in its instruction to the jury. It was the correct rule, and consequently this instruction afforded no ground for the granting of a new trial. 2 Am. & Eng. Enc. Law, p. 745, and cases there cited; 4 Elliott, R. R. § 1592. Whether or not the plaintiff's version of this transaction was true was a question of fact for the jury. They believed it, returned a verdict in his favor, and the trial judge has approved their finding. It is amply supported by the evidence. In view

31 Acc. Houston, etc., Co. v. Batchler, 32 Tex. Civ. App. 14, 73 S. W. 981 (1903), passenger assaulted on station platform; So. Ry. Co. v. Nelson, 148 Ala. 88, 41 South. 1006 (1906), arrested at station for alleged failure to pay fare; McKimble v. B. & M. R. Co., 141 Mass. 463, 5 N. E. 804 (1886), leaving train on side away from station and crossing track; Chicago, etc., R. Co. v. Tracey, 109 Ill. App. 563 (1903), same point; Pa. Co. v. McCaffrey, 173 Ill. 169, 50 N. E. 713 (1898), semble, passenger leaving train stopped at crossing of public street and attempting to cross track; Chesapeake, etc., R. Co. v. King, 99 Fed. 251, 40 C. C. A. 432, 49 L. R. A. 102 (1900), alighting and crossing track. Compare Allerton v. B. & M. R. Co., 146 Mass. 241, 15 N. E. 621 (1888), crossing track in public street; Pittsburgh, etc., Ry. Co. v. Krouse, 30 Ohio St. 222 (1876), re-entering train in search of conductor; Hendrick v. Chicago, etc., R. Co., 136 Mo. 548, 38 S. W. 297 (1896), walking down station platform to speak to engineer; St. Louis, etc., Ry. Co. v. Beecher, 65 Ark. 64, 44 S. W. 715 (1898), walking home on railroad track; Krantz v. Rio Grande, etc., Co., 12 Utah, 104, 41 Pac. 717, 30 L. R. A. 297 (1895), peddler preparing to sell wares at station; Finnegan v. Chicago, etc., Co., 48 Minn. 378, 51 N. W. 122, 15 L. R. A. 399 (1892), person leaving train he has taken by mistake, and walking at the direction of the conductor along the track at a place not designed for passengers to take his proper train; King v. Cent. of Ga. Ry. Co., 107 Ga. 754, 33 S. E. 839 (1899), person waiting midway on his journey for connecting train, who crossed carrier's premises at place intended for passengers, on his way from hotel to shop, and not for purpose of taking train.

"When appellant left the train, appellee owed him no duty except to give him a safe way in which to leave the premises of the railway company, and if he returned to the train after having once disembarked therefrom, for the purpose of using it as a mode of crossing to the other side of the track, he was a trespasser, and appellant owed him no duty, except not to hurt him, if it discovered him in a place of peril." Fly, J., in Ratteree v. Galveston, etc., Ry. Co., 36 Tex. Civ. App. 197, 81 S. W. 566 (1904).

of the circumstances under which the injury occurred, the nature of the wounds inflicted, it was not excessive, and this court will not control the discretion of the trial judge in refusing to grant a new trial. Judgment affirmed. All the Justices concurring.

St. LOUIS SOUTHWESTERN RY. CO. OF TEXAS
v. BRYANT.

(Court of Civil Appeals of Texas, 1906. 92 S. W. 813.)

Action for personal injury alleged to have been received through the negligence of defendant railroad company in starting its train as plaintiff, a passenger, was in the act of alighting at the station of his destination. There was evidence that plaintiff, when getting off the train, stopped for some time upon the platform of a car to buy a paper of a newsboy there, and that the car had moved 15 or 20 feet when he stepped off with grips in his hand. Plaintiff had a verdict and judgment. Defendant appeals.

TALBOT, J.32 * ** Complaint is made of the court's action in refusing to give appellant's requested instruction which reads as follows: "If you believe from the evidence that the employés of defendant stopped the train at Chandler a reasonably sufficient time for a passenger situated as was plaintiff to depart therefrom, and if you should further believe that the plaintiff delayed getting off said train from any cause, and that this delay, if any, was unknown to defendant, then you are charged that his contract relation with defendant ceased at the expiration of such reasonable time, if any, and the defendant could become liable only through failure of its servants to exercise ordinary care against inflicting injury upon plaintiff." The refusal to give this charge was error for which the judgment must be reversed and the cause remanded for a new trial.33 * * *

32 The statement of facts is based upon facts stated in the opinion. Parts of the opinion are omitted.

33 Acc. Chicago, etc., Co. v. Frazer, 55 Kan. 582, 40 Pac. 923 (1895); Heinlein v. B. & P. R. Co., 147 Mass. 136, 16 N. E. 698, 9 Am. St. Rep. 676 (1888), loitering at station; Glenn v. L. E. & W. R. Co., 165 Ind. 659, 75 N. E. 282, 2 L. R. A. (N. S.) 872, 112 Am. St. Rep. 255 (1905), loitering at station; Hudson v. Lynn & B. R. Co., 185 Mass. 510, 71 N. E. 66 (1904), carrier unable to collect fare because passenger in a stupor. Compare Doran v. East River Ferry Co., 3 Lans. (N. Y.) 105 (1870), remaining on board throughout return trip without demand or payment of return fare; Bass v. Cleveland, etc., Ry. Co., 142 Mich. 177, 105 N. W. 151, 2 L. R. A. (N. S.) 875 (1905), sleeping passenger not awakened by carrier; Chicago, etc., R. Co. v. Wood, 104 Fed. 663, 44 C. C. A. 118 (1900), passenger intending to stay in station longer than he would be entitled to stay. For the status of a person changing cars at a union station of connecting carriers, see Davis v. Houston, etc., R. Co., 25 Tex. Civ. App. 8, 59 S. W. 844 (1900).

PART V

THE COMMON CARRIER'S DUTY TO SERVE

CHAPTER I

EXTENT OF OBLIGATION TO SERVE

BENNETT v. DUTTON.

(Superior Court of Judicature of New Hampshire, 1839. 10 N. II. 481.)

Case for refusing to receive plaintiff as a passenger in defendant's coach. The evidence showed that rival lines of daily stages were run from Lowell to Nashua, one of which, operated by French, ran in connection with defendant's line, which extended from Nashua to Amherst and beyond; the two lines by agreement between their proprietors forming a through route for the carriage of passengers and mail. The contract with the government for the carriage of mail required that connecting coaches forming a mail route should give preference to each other's passengers. Defendant had further agreed with French not to carry on the same day that he arrived any passenger who came from Lowell to Nashua by the rival line. The plaintiff took the rival line at Lowell, though he had been notified that if he did so defendant would not receive him that day as a passenger. As soon as he reached Nashua, plaintiff applied to be received into defendant's coach, and tendered the fare to Amherst. There was room in the conveyance, but defendant refused to receive him. The parties agreed that judgment should be rendered for the plaintiff, for nominal damages, or for the defendant, according to the opinion of the court upon the facts.

PARKER, C. J.1 It is well settled that, so long as a common carrier has convenient room, he is bound to receive and carry all goods. which are offered for transportation, of the sort he is accustomed to carry, if they are brought at a reasonable time, and in a suitable condition. Story on Bailments, 328; Riley v. Horne, 5 Bing. 217, 15 Eng. C. L. R. 426. * *

*

And we are of opinion that the proprietors of a stagecoach, for the regular transportation of passengers, for hire, from place to place,

1 The statement of facts has been rewritten, and part of the opinion omitted.

(525)

are, as in the case of common carriers of goods, bound to take all passengers who come, so long as they have convenient accommodation for their safe carriage, unless there is a sufficient excuse for a refusal. Jencks v. Coleman, 2 Sumn. 221, Fed. Cas. No. 7,258; Hollister v. Nowlen, 19 Wend. (N. Y.) 239, 32 Am. Dec. 455.

The principle which requires common carriers of goods to take all that are offered, under the limitations before suggested, seems well to apply.

Like innkeepers, carriers of passengers are not bound to receive all comers. Markham v. Brown, 8 N. H. 523, 31 Am. Dec. 209. The character of the applicant, or his condition at the time, may furnish just grounds for his exclusion. And his object at the time may furnish a sufficient excuse for a refusal; as, if it be to commit an assault upon another passenger, or to injure the business of the proprietors.

The case shows the defendant to have been a general carrier of passengers, for hire, in his stagecoach, from Nashua to Amherst, at the time of the plaintiff's application. It is admitted there was room in the coach; and there is no evidence that he was an improper person to be admitted, or that he came within any of the reasons of exclusion before suggested.

It has been contended that the defendant was only a special carrier of passengers, and did not hold himself out as a carrier of persons generally; but the facts do not seem to show a holding out for special employment. He was one of the proprietors, and the driver, of a line of stages from Nashua to Amherst and Francestown. They held themselves out as general passenger carriers between those places. But, by reason of their connection with French's line of stages from Lowell to Nashua, they attempted to make an exception of persons who came from Lowell to Nashua, in Tuttle's stage, on the same day in which they applied for a passage for the north. It is an attempt to limit their responsibility in a particular case, or class of cases, on account of their agreement with French.

It is further contended that the defendant and other proprietors had a right to make rules for the regulation of their business, and among them a rule that passengers from Lowell to Amherst and onward should take French's stage at Lowell, and that by a notice brought home to the individual the general responsibility of the defendant, if it existed, is limited.

But we are of opinion that the proprietors had no right to limit. their general responsibility in this manner.

It has been decided, in New York, that stagecoach proprietors are answerable, as common carriers, for the baggage of passengers; that they cannot restrict their common-law liability by a general notice. that the baggage of passengers is at the risk of the owners; and that if a carrier can restrict his common-law liability it can only be by an express contract. Hollister v. Nowlen [ante, p. 395]. And this prin