swaying of the door, and it was thrown back against the plaintiff's right hand, and his right arm passed through the glass of the upper part of the door, cutting it very severely in many places, the most severe being across the wrist; whether the swaying of the door was caused by the motion of the car, or by some person on the outside of the door, witness could not tell; that this happened just after the passing an opening in the tunnel, at which break the light was sufficient to enable him to see the door was open, and that there were persons standing in and about the doorway, some on the inside and some on the outside; that nothing could be done after the accident, because it was pitch dark, and nobody knew what had occurred; that feeling himself bleeding, he could only grasp his arm with his left hand and try to stop the blood till the train got into the light, when persons came to his assistance; that the train went through the tunnel "very slowly; it fairly crept;" and it was so heavy, some distance out of town it stopped, and was divided because it was so heavy; that since the accident he has been deprived of the free use of his right hand, besides suffering great pain, and being subjected to great expense for medical attendance, etc.

It appeared in the proof of the defendant that the running time for the passage of the tunnel was from six to seven minutes. This is a sufficient summary of the evidence for our purpose, and assuming its truth, we think there was no error in refusing to take the case from the jury because of the reasons stated in either of the prayers of the defendant.

There can be no doubt that it is the duty of railroads for the conveyance of passengers to take proper precautions in the management, appointments, and discipline of their trains, to secure the safety and reasonable comfort of their passengers. The passenger pays his fare, and in consideration thereof the company engages to take him to his destination with due care for his appropriate comfort and safety consonant with the exigencies of that kind of travel. The company knew the train had to pass through the tunnels of the Baltimore & Potomac Railroad. Lights were necessary for such a totally dark transit. The necessities of passengers might require light during the passage of them. No argument is needed to prove this. The officers of the train, testifying for the defendant, say there were lights in all the cars; but this is a question of evidence, and the plaintiff and another passenger say there

were none.

The imperative necessity for closing the windows, doors, and even the ventilators when passing through tunnels, to prevent the otherwise inevitable discomfort from the smoke, cinders and gas, is notorious. The ordinary practice of the company to do that before entering a tunnel, as proved by the defendant's own witnesses, establishes the importance of such precaution. There were

ten

passenger coaches and but two conductors and two brakemen on the train. When the cry was made to "shut the door," there was no officer in the car to comply with the passengers' request, and the plaintiff was impelle l by his discomfort to attempt to do it himself. Whilst we do not think or mean to say that an officer should have been provided for every car, or that the omission to shut out the gas and smoke would of itself have given a right to passengers to sue for the discomfort and annoyance, yet we think all the recited facts and circumstances taken together, if found by a jury, would warrant the finding of negligence on the part of the defendant, and justify a verdict for the plaintiff, unless the plaintiff's conduct amounted to contributory negligence. This the court was asked by the defendant to say, as a matter of law, the plaintiff's action was, and barred recovery. We think the court below committed no error in declining to so instruct the jury. The plaintiff was sitting nearest the door, and was, therefore, subjected naturally to more discomfort than fellow passengers in remote parts of the car. He received its full force and volume, as it came rushing in, before it diffused itself over the car. It choked him. Self-preservation prompted him to shut it out. It cannot be that a man, under such circumstances, feeling himself suffocating or choking from the smoke, cinders and gas, must sit supinely, and endure, without making any effort to relieve present and prevent further physical pain. Shutting the door was the only remedy, and if, in his effort to do that which the company should have done for him, but did not, he acted with prudence and care, he cannot be regarded as guilty, in law, of such contributory negligence as defeats his action. It is said it was imprudent because he knew there were persons about the door inside and out, and their presence there may have been the immediate cause of the accident. If that were so, it cannot affect the question; for there were no seats for those persons, and it was the duty of the company to have seen that the doorway was not so obstructed by the crowd as to keep it open and inflict this discomfort on passengers, and prevent the doors being shut. The witness did not know he could not shut the door, or he would not have made the effort, we may fairly suppose; and his description of the manner in which he attempted to shut the door, indicates that it was with great care and caution; and the jury have so found; for that question was submitted to them at the plaintiff's own instance, in his first prayer. This is the plain and natural view of the case, and we have direct authority in support of it. In Gee v. Metropolitan Railway Co., L. R. 8 Q. B. 161, Chief Justice Cockburn thus lays down the law: "If the inconvenience is so great that it is reasonable to get rid of it, by an act not obviously dangerous, and executed without carelessness, the person causing the inconvenience by his negligence would be liable for an injury that

might result from an attempt to avoid such inconvenience." If the appellee acted without carelessness or negligence, it is clear he was not culpable. In Mayor and C. C. of Baltimore v. Holmes, 39 Md. 249, this court said, negligence is "the want of such care, as men of ordinary prudence would use under similar circumstances." There was certainly evidence from which a jury might reasonably find he did act with such prudence and care as men of ordinary prudence under like circumstances would have acted; and that the appellant had not used reasonable caution in providing for the exigencies of that occasion, and was guilty of such negligence as warranted a verdict for the plaintiff. We have been cited by the counsel for appellant to Sec. 363 of Wharton on Negligence, where the case of Adams v. Lancashire & Yorkshire Ry. Co., L. R. 4 C. P. 739, is cited as establishing in England, that a passenger cannot shut a door, when a conductor could be called on to do it, without incurring the charge of culpably contributory negligence if he should be injured in so doing. Assuming that case would be followed under exactly similar circumstances here (which we do not find it necessary to determine in this case), still the facts of this case take it out of the operation of the rule there laid down; for there was no conductor or other officer to shut it when called on, and the necessity was forced on the appellee to shut it, or endure such inconvenience and discomfort as he ought not to be required to suffer without proper effort to secure relief. But the same section cites approvingly the case of Gee v. Metropolitan Ry. Co., to which we have already referred, where recovery was allowed in a case where a passenger rose up to enjoy a look out from the window, and pushing against a door which was imperfectly and negligently fastened, it flew open and the passenger was injured. That case was not nearly so strong a case for the plaintiff as this is. We cannot see that there was any departure from well-settled principles in the rulings of the court below, or from the authority of any of the cases relied on at the hearing. Finding no error the judgment will be affirmed. Judgment affirmed.

DISSENTING OPINION.

STONE, J.-I think, in this case, that the plaintiff was clearly guilty of contributory negligence, and was not entitled to recover, and that the court should have so instructed the jury. In arriving at this conclusion, I assume, of course, the evidence on the part of the plaintiff to be true.

The only inconvenience suffered by the plaintiff was from the smoke and cinders which came into the cars while passing through the tunnel. The time occupied by the train in passing through the tunnel was six or seven minutes. The tunnel itself is divided into three sections, with openings between, and at one of the

openings there is a station. When in the tunnel, and when it was dark (no lights in the cars), the passenger left his seat with his hands extended before him in order to shut the door, and the door swaying, either from the motion of the cars or from the act of another passenger, he ran his hand through the glass of the door and cut it.

That his own act caused the injury to the plaintiff must be clear. He was furnished by the company with the seat in their cars, for which he had duly paid, and would have been safely transferred to his destination, if he had kept that seat.

The only question to my mind then, is, whether the company gave him sufficient cause to leave his seat. If they did not they cannot be held liable.

The comfort and convenience of a passenger is a very undefined and undefinable matter. Some inconvenience or discomfort is almost inseparable from all travel. Too much or too little warmth, or too much sun or draught, are all subjects of annoyance. But I do not understand, that in order to escape this and kindred annoyances, a passenger is justified in assuming a work that properly belongs to the officers of the train. If he does, he does it at his own risk.

When, however, the discomfort caused by the negligence of those in charge of the train is so great as to endanger the life or health of the passenger, then, if he can do so without manifest risk, he is authorized to endeavor to remedy the evil.

That some smoke and cinders penetrate the cars in their passage through a tunnel, is as inevitable as that some air will find its entrance. That the life or health of a passenger can be really endangered by all the smoke or cinders that can enter in the few minutes taken to pass through the tunnel, even if the door of the car be open, is an impossibility in the nature of things. It may be a great discomfort to the passenger but it can be nothing more. While I assume the evidence of the plaintiff to be true, his language must be taken in its ordinary meaning, which is not always the literal one. When he says he "was choking," he can only mean that he was suffering great discomfort from the inhalation of the smoke, etc., and not that his respiration was about to be stopped. This discomfort could have lasted but a very few minutes, and could not have endangered his life or health.

In leaving, therefore, his seat, and attempting to perform the duty of a brakeman, he did so at his own risk, and, as a matter of law, I think there was no sufficient evidence to go to the jury to authorize a recovery.

WHITE

v.

MILWAUKEE CITY RAILWAY, Co.

(Advance Case, Wisconsin, November 25, 1884.)

Upon a street railway a separate track was used for the cars going in each direction, and frogs were so placed as to prevent cars, going in the proper direction, from being thrown from the track while going upon or leaving a swing-bridge. A loaded wagon having broken down on the bridge upon one of the tracks, a car approaching thereon was necessarily lifted to the other track, and being then driven rapidly upon the bridge, was thrown from the track, injuring a passenger. Held, that the company was not negligent in not placing frogs so as to prevent a car thus going in the wrong direction upon the track from being thrown off, but that the question whether the speed with which the car was driven upon the bridge was not, under the circumstances, negligent, was for the jury.

In an action for personal injuries the court may, in a proper case, at the trial direct the plaintiff to submit to a personal examination by physicians on behalf of defendant.

To justify the assessment of damages for future or permanent disability, it must appear that continued or permanent disability is reasonably certain to result from the injury complained of.

APPEAL from County Court, Milwaukee county.

This action was brought by the plaintiff to recover damages for personal injuries alleged to have been received by her through the negligence of the defendant company, its agents and servants, while riding in one of its street cars. The facts of the case are briefly as follows: The defendant operates two tracks of street railway, running north and south on East Water and Reed streets, in the city of Milwaukee. These streets abut each other at the Menominee river and are connected by a swing-bridge across that river near the Union depot. The tracks are laid upon the bridge. The west track is used exclusively for cars going south, and the east track for those going north. At the time of the injury the plaintiff was a passenger in one of the cars of the defendant going north on the east track on Reed street, which is the street south of the river. A loaded wagon had broken down on the bridge and obstructed that track. The car in which the plaintiff was riding was safely and properly removed to the west track, and just as it was driven upon the bridge the forward wheels left the track. The jolt of the car caused thereby threw the plaintiff from her seat and caused the injury complained of, which was a bruise of one of her limbs below the knee. The ends of the rails of the west track on the south abutment next the bridge were constructed with frogs, which seem to be nothing more than a widening of the rails at the ends. There were also frogs on the ends of the rails