each case, as the evidence was the same, and the ground of action identical. We consider the case of Mrs. Baldwin first. In Tennessee, the statute provides that: "Whenever the facts in the case entitle the plaintiff to sue for breach of contract, or at his election for a wrong or injury, he may join the statement of his cause of action in both forms or either." Shannon's Code Tenn., § 4439. This is substantially what the defendant in error did, and while she states a contract, and sues for its breach, the gist of her action is the tort, the wrong and injury which arose out of the breach. The contract may in such cases be laid merely as the foundation of the duty which the defendant disregarded. Pouilin v. Canadian Pacific Ry. Co. (C. C.) 47 Fed. 858. Two distinct contracts are stated in the declaration, one with the railroad company, and the other with the Pullman Company. In one count there is the semblance of a statement of a joint contract, but the facts stated make it plain that the contract with each was distinct. The contract with the railroad company, as averred, is that it sold to the plaintiff "a full-rate ticket by which said railroad contracted to convey her in a first-class car all the way from Memphis to Bowling Green." The contract with the Pullman Company, as stated, is that she also bought a sleeping car ticket from its "agent at Memphis, paying full fare therefor, upon which ticket she was to receive sleeping car accommodations from Memphis to Bowling Green." The court below instructed a verdict for the Pullman Company, and no writ of error has been sued out by Mrs. Baldwin's administrator against that company. We need not, therefore, consider its liability until we come to Mrs. Scott's writ of error to which it is a party. The only breach of the contract with the railroad company averred is in respect to the alleged failure of that company to carry her all the way to Bowling Green in a first-class car. That she was carried there is admitted, but it is averred she was removed from the sleeper in the nighttime and required to continue her journey in what is described as "an open car, in which were crowded men, women, and children, and in which all of the windows and doors were open." It is also said that: "It seemed to have been an old car found somewhere along the company's line and for this supposed emergency, and was wholly different from the car in which the defendants had contracted to carry plaintiff to her destination." It is then averred that the plaintiff was about 75 years of age, though she had enjoyed theretofore good health. That in consequence of exposure in this open car she contracted cold, and had been ill ever since. By the amended declaration it is charged that her death some 18 months afterwards was proximately caused by this "willful and wanton and unlawful conduct of the two defendants, in requiring her to change from a comfortable car in the manner stated to one where she was exposed as aforesaid and wholly unfit for the safety of herself." The evidence establishes that the train carrying the sleeper in which Mrs. Baldwin and Scott had secured sleeping accommodations was a train which ran between Memphis and Bowling Green. At the latter point the sleeper was taken by a train from New Orleans and Nashville to Louisville and Cincinnati. In consequence of a wreck just beyond Bowling Green, it became necessary, in the opinion. of the authorities, to detour this train at Guthrie, via Nortonville; thence, over the tracks of the Illinois Central Railroad, to Louisville. The sleeper contained quite a number of passengers for Louisville and points beyond. To accommodate the larger number, plaintiff and her daughter, whose destination was Bowling Green, were told of the situation and asked to take seats in the day coach, which would be sent through at once to that point. The distance was only some 45 or 50 miles, requiring a journey of something less than two hours. There was evidence that they were given an election to go around by Louisville in the sleeper, and thence back to Bowling Green by another train, or continue their journey with such accommodations as were obtainable under the conditions. It is not clear, however, that this was understood. We therefore lay this evidence aside, stopping only to observe that a journey to Louisville and then back to Bowling Green would have entailed something like 400 more miles of travel than to have gone direct to Bowling Green, and that it is not at all probable that these ladies would have for a moment agreed to such a circuitous route. It was undoubtedly inconvenient to be aroused. from sleep at 3 o'clock in the morning and to change from a sleeper to a day coach, and it must be assumed that the change resulted in some comparative discomfort for the rest of the journey. But traveling is attended with more or less discomfort, and a temporary condition resulting from a wreck ahead compelled the carrier to either detour the only sleeper with the train, or procurable at the time, to accommodate the greater number, or to carry it on to Bowling Green for the accommodation of the two passengers destined to that point at the risk of greatly delaying and inconveniencing the greater number. The question at last is whether the railroad company breached its contract by detouring this sleeper and thus necessitating a change into the day coach provided. We think not. The sleeper was the property of the Pullman Company, and was carried under a contract between that company and the railroad company. The Pullman Company sold sleeping accommodations to such persons as should be provided with railroad tickets. The railroad company neither sold nor received compensation for such accommodations, and its relation to the whole matter was under its contract with the Pullman Company, and no contract between Mrs. Baldwin and the railroad company is averred or implied, other than the contract to carry her in a first-class car to her destination. It was not therefore a breach of any agreement with Mrs. Baldwin to detour this sleeper under the conditions, provided she was given a seat in a safe and reasonably comfortable car, such a car as ordinarily furnished by well-managed railroad companies, to Bowling Green. There was hardly any dispute about the character of the car in which the plaintiffs finished their journey. The plaintiff, Mrs. Scott, described it in her evidence "as an open smoker," and that a "chill east wind was blowing through it." By "open" she meant that the windows were up. But she admits that she did not complain of this fact, and made no effort to have the windows put down, saying: "As a matter of course I could not control every window in the car." The car was partitioned; one end being used as a smoker. But no smoking occurred while the plaintiffs used it. It was a comparatively new car, with comfortable upholstered seats. The substantial complaint is therefore limited to the fact that the windows in the car were up, or many of them, and the doors open; the car being a vestibuled car. The night had been very close and hot. Toward morning it grew chill; but it was an August night, and it would be somewhat unusual to find a car full of passengers who should, under such circumstances, unite in wishing all of the windows closed. The relation of a carrier to passengers is not that of an insurer. They must exercise a high degree of care in respect to all which concerns their safe transportation, but are only liable for negligence. When it comes to the mere incidents of their personal comfort or discomfort in the matter of open or closed windows, much must be left with the individual passenger. It would be a most unreasonable thing to hold a carrier answerable for the exposure of passengers to such drafts as are ordinarily an incident of travel. Passengers must be expected to exercise some judgment and discretion. about the matter of open or closed windows and have some regard to the comfort of each other. Mrs. Scott understood this implied condition of travel, for she explains her failure to complain by saying: "I did not feel like I had the privilege of making every one in the car close their windows." This being one of the incidents, it is plain that the railroad company did not break its agreement to convey her in a first-class car by carrying her in one which had more or less of raised windows, especially as the plaintiffs gave the company no notice of special discomfort and no opportunity of locating them where they would be protected as far as possible, having due regard to the rights and comfort of others who might wish fresh air. See Edmunson v. Pullman Palace Car Co., 92 Fed. 824, 34 C. C. A. 382. Neither was there anything in the special circumstances which was likely to require any special attention. True, she was past 70, but she was veiled, and her age therefore not specially noticeable. She was accompanied by her daughter, Mrs. Scott, and the daughter testified that her mother was unusually active for her age and in good health. The view we have taken of the case was presented to the court by one of the special requests presented by the railroad company, which was denied. That request was upon the plain and indisputable facts of the case applicable and should have been given. The thirteenth assignment of error is sustained for this reason. The request was in these words: "Each of the plaintiffs alleges that she bought of the defendant, the Louisville & Nashville Railroad Company, ‘a full-rate ticket, by which said railroad company contracted to convey her in a first-class car from Memphis, Tenn., to Bowling Green, Ky.' It is not alleged that the Louisville & Nashville Railroad Company agreed or obligated itself to furnish either plaintiff with any particular kind or make of car, or a sleeping car, or that it in any way became obligated to do so. If, therefore, you find that the said Louisville & Nashville Railroad Company furnished plaintiffs substantially a first-class car, then it has complied with its undertaking, and you will find for the defendant, the Louisville & Nashville Railroad Company." The learned trial judge did, in substance, so instruct the jury; but he unfortunately coupled it with the condition that they should so find if the plaintiffs were given an option to go on with the sleeper to Louisville and then back to Bowling Green, or by the car which went direct to Bowling Green. It was immaterial, we think, whether such an option was or was not tendered, for passengers could hardly be concluded by declining a circuitous route of some 20 or 24 hours as against one of less that 2 hours in a coach such as they had a right to expect and require. In the view we take of the case it is not necessary to pass upon any of the other assignments. We find no error of which Mrs. Scott can complain. The Pullman Company's implied contract was to afford Mrs. Scott sleeping accommodation in their sleeper to her destination, provided the railroad company would carry it. Duval v. Pullman Company, 62 Fed. 265, 10 C. C. A. 331, 33 L. R. A. 715. The Pullman Company did not detour it. That was the act of the railroad company, which, finding it could not be carried through by Bowling Green without great delay, undertook to carry it to its destination by a longer and different route, thereby serving the larger number. The utmost liability of the Pullman Company would be the difference between the schedule rate for sleeping car accommodations from Memphis to Guthrie and from. Memphis to Bowling Green. The price of a ticket to each place was the same. Judgment affirmed as to Mrs. Scott and reversed as to Mrs. Baldwin. (155 Fed. 73.) PAYNE v. ILLINOIS CENT. R. CO. (Circuit Court of Appeals, Sixth Circuit. June 15, 1907.) No. 1,627 1. CARRIERS-PASSENGERS TERMINATION OF RELATION. A passenger on a railroad train alighted in the night at the town where he resided. The station, the town, and his home were all on the west side of the track, and the doors of the cars, which were vestibuled, were opened on that side. After his train had departed, he was killed by another train on a track to the eastward. Held, that he had ceased to be a passenger prior to his death, and the company at that time owed no duty to him as such. [Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 991993. Continuance of passenger relation, see note to Chesapeake & O. Ry. Co. v. King, 40 C. C. A. 437.] 2. DEATH-ACTION FOR WRONGFUL DEATH-QUESTIONS FOR JURY. To justify the submission to the jury of a case brought to recover for the death of a person, alleged to have been caused by the negligence of defendant, there must be substantive proof not only of such negligence, but that it brought about the injury. [Ed. Note. For cases in point, see Cent. Dig. vol. 15, Death, § 141.] 3. SAME-DEATH OF PERSON ON RAILROAD TRACK-EVIDENCE OF NEGLIGENCE. In an action for wrongful death, it was shown that deceased was a passenger on a vestibule train on defendant's railroad, and alighted therefrom at night at the town where he resided. The station, town, and the home of deceased were all on the west side of the track, and the doors of the train were opened on that side. On a side track to the eastward of the main track, a freight train was standing waiting for the passenger train to pass. After the latter had gone, the freight started, but a coupling broke, and the cars were separated some 30 feet before the front portion stopped, standing across a private crossing. The conductor and a flagman went back to the caboose with a lantern for a knuckle, walking along the west side of the cars. After the front part of the train had been backed up and coupled, the conductor passed forward to the engine on the same side of the cars, when he discovered the body of the deceased lying near the private crossing, on its back, with the feet to the west, and the head on the west rail, where it had been crushed by the wheels evidently when the cars were backed. There were no other injuries, and the clothing was not disarranged. The side track at the place of the injury was being moved, and the earth had been removed from between the ties, and it was unlighted. Held, that such facts would not warrant a finding that the death was due to such condition of the track. where all the evidence tended to show that the case was one of suicide, and, in any event, that deceased was a trespasser and guilty of such contributory negligence as to preclude a recovery. 4. RAILROADS OPERATION-STATUTORY REGULATIONS-TENNESSEE STATUTE. Shannon's Code Tenn. § 1574, subsec. 4, which requires every railroad company to keep some person on the locomotive always on the lookout ahead and to sound the whistle, apply the brakes, and employ every means to stop the train when any person, animal, or other obstruction appears upon the road, does not apply to a train which became uncoupled on a side track in depot grounds and was backing up to recouple. [Ed. Note. For cases in point, see Cent. Dig. vol. 41, Railroads, § 747.) In Error to the Circuit Court of the United States for the Western District of Tennessee. K. D. McKellar, for plaintiff in error. Before LURTON, SEVERENS, and RICHARDS, Circuit Judges. RICHARDS, Circuit Judge. This action was brought by the plaintiff to recover for the wrongful death of her husband, George Payne, who was run over and killed on the night of February 2, 1904, by a portion of a freight train of the Illinois Central Railroad Company, in the depot grounds at Dyersburg, Tenn. Payne lived in Dyersburg. Between 10 and 11 o'clock that night he arrived there from Paducah, Ky., on a vestibuled passenger train. A short time afterwards he was found dead on the side or passing track, then in use by a freight train bound north, which had been waiting for the south-bound passenger train, and was expecting to leave as soon as it arrived. Payne was killed by one of the portions of this freight train while being coupled together. The question raised below, and the only one in the case, is whether the proofs presented a case for recovery. The defendant submitted that no negligence on its part causing the accident was shown. This the court held and directed a verdict for the railroad company. Was the court correct in so holding? The passenger train which Payne took reached Dyersburg between 10 and 11 o'clock that night. He was seen on the train, but no one observed him leave it. The train was vestibuled, and was going south. After the usual custom, the vestibules were opened on the west side. The station was located on the west side of the main track, and |