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than 8 or to inches, out of the window adjacent to his seat, not more than one minute, when by reason of the gross neg. ligence of appellee in running its train at an unusual and dan. gerous rate of speed over a portion of the road where there were numerous dangerous obstructions, of which he, appellant, was ignorant, his arm came in contact, with an obstruction in immediate proximity to the railroad track, whereby it was broken and great suffering by him was caused," etc.

It does not make any difference in the legal aspect of this case at what rate of speed the train was running at the time; for the injury was not caused by defect of the rail. road track, nor collision of the train with any ob- Question pre. ject, but by contact of appellant's arm with an object beyond the car in which he was seated, and off the track, which would have produced the same result even if the speed had been no greater than the usual rate at which through or fast passenger trains run. The simple case presented is that of a passenger negligently putting his arm outside a fast moving car in which he was seated, and letting it so remain until struck by some object, and, as a consequence injured and broken, which would not have occurred if he had kept his person entirely inside the car. As has been held by this court, contributory negligence is a defense which confesses and avoids the plaintiff's case, and miust be affirmatively pleaded. Railroad Co. v. Hoehl, 12 Bush (Ky.), 41 ; Kentucky R. Co. v. Thomas, 79 Ky. 160, 1 Am. & Eng. R. Cas. 79. Still there is no reason why it Contributory may not be decided, on demurrer to the petition, Decision on whether, according to the facts stated by the demurrer. plaintiff, he was guilty of such contributory negli. gence as to defeat his recovery. The rule recognized and applied by this court is that, if the plaintiff so far contributed to the injury complained of by his own negligence or want of ordinary or common care and caution that but for his con. curring and co-operating fault the injury would not have occurred, he cannot recover. Railroad Co. v. Hoehl; Kentucky R. Co. v. Thomas. There are two exceptions to this rule. One is when the injury is intentionally done, or results from willful negligence of the defendant; the other is when the direct cause of the injury is omission of the defendant, after becoming aware of the plaintiff's negligence, to use a proper degree of care to avoid the consequence of such negligence. The first has no application to this case whatever, and the other can have none unless the servants of every railway company be required to keep constant watch over passengers in order to prevent an act so palpably dangerous as putting the head or arm outside a car in motion, which would

no right to recover.

be unreasonable. Railroad Co. v. Sickings, 5 Bush. I, was the case of a passenger who had bis arm resting on the window sill of a moving car, the elbow protruding outward, when it came in contact with the leaning standard of a freight car standing on the switch track, but left so close to the main track that the standard rubbed against the passenger car window, striking and breaking his arm. In considering the question of the company's liability, many authorities were cited with approval in support of the doctrine that under like circumstances the passenger must be regarded as guilty of such contributory negligence as will deprive him of all right to claim compensation from the carrier for injury occasioned. But the following language was used in that case: “The voluntary situation of appellee's arm at the time of the injury must in law be deemed gross negligence which contributed to the injury, and which will preclude him from any right of recovery, unless he can show negligence on the part of the defendant or its agents or servants, and for whose conduct it is legally responsible." It now seems to us that, if the

doctrine expressly recognized by this court since Plaintiff has

that case was decided to be reasonable and just, and that so manifestly accords with the current of

authority in this country, be adhered to, the plaintiff in this case, upon his own statement of facts, has no right to recover; for the rule of law that a party is precluded from recovering for an injury to which he so far contributed as that but for his own negligence and want of ordinary care it would not have happened, can upon neither principle nor public policy be relaxed or qualified in this character of case, even if the conduct of the other party could be logically considered in any case. Every person of ordinary intelligence traveling on a railroad well knows that human foresight cannot anticipate, nor human skill and care provide with absolute certainty against, accidents at all times, and under all circumstances, that result in personal injury and loss of life. The most that can be done is to lessen the risk as far as possible, by requiring each company to keep its road in proper condition and repair, to furnish proper and suitable machinery and cars, adopt salutary rules for and by its servants exercise skill and active vigilance in, operating its trains. But still it is obvious the safety of each passenger must of necessity depend in many cases ineasureably upon his own conduct, and the laws should therefore hold him to the duty of at least ordinary care and observance of rules made by the company for the security and safety of passengers. Besides, it seems to us public policy requires, because essential to the safety of railroad passengers generally, that it be clearly understood and kept in the mind of each one as an incentive to caution and care, that he must suffer without compensa. tion from the company for any injury caused by his own negligent and unnecessary exposure of person to danger, in putting his head or limbs outside a car in motion.

Judgment affirmed. Contributory Negligence of Passenger Protruding Hand or Arm from Car Window. --See Georgia Pac. R. Co. v. Underwood (Ala.), 44 Am. & Eng. R. Cas. 367 ; Moakler v. Willamette V. R. Co. (Ore.). 41 Id. 135, note 143.

Contributory Negligence of Passenger Sitting on End of Open Coal Car.In Jackson v. Crilly (Colo. March 13, 1891), 26 Pac. Rep. 331, it was held that a passenger or an excursion train who seats himself on the rear end of an open coal car, not exceeding 2 1-2 inches in thickness, with his feet elevated by being placed on the seat directly in front of him, and with no possible opportunity of protecting himself in case of a sudden jolt of the car, when he might have found a safe seat in an adjoining car or stood up in the car in question, is guilty of contributory negligence as a matter of law; and, in an action for his death, caused by falling from his seat while the train was in motion, it is error to submit the question of contributory negligence to the jury.

Contributory Negligence of Passenger Going on car Before Regular Time.In Hodges v. New Hanover Transit Co. (N. Car. Dec. 22, 1890), 12 S. E. Rep. 597, it appeared that the defendant's railroad was used mainly for carrying passengers to a seaside resort. The plaintiff was one of a party which had gone there for the day. The cars were left standing by the platform with their steps 2 1-2 inches therefrom. A half hour before the time for the train to start on its return trip, the plaintiff went, with others, to get on the cars, and she fell between the step and the platform. The cars had not been lighted and prepared for the reception of passengers, and it was then quite dark at that place. Held, that there was no evidence of negligence on the part of the defendant, and that the plaintiff was guilty of contributory negligence. The court said : “ The defendant was not, as contended, bound at such a place, and under such circumstances, to fence in or inclose its platform and cars and trains to keep people from going on them, nor to keep a servant by them to warn people not to go on or about them. Persons (passengers) ought not to have gone on them, except at the regular time, and in the regular way, for the purposes of going on the return trip. They went on them at other times in their own wrong, and at their peril, in the absence of some default on the part of the defendant that was in and of itself dangerous. No default of that character appeared from the evidence. The accident seems to have been wholly attributable, and to have been attributed, to the want of light at the place where the plaintiff went on the car, and fell. It was incautious, imprudent, and negligence, gross negligence, of the plaintiff to attempt to go on the cars when she did, without having a light sufficient. She went, or attempted to go, on the cars without necessity, out of order, at the wrong time, and in the dark. The defendant was not bound to light the cars until within a reasonable time before the time fixed to start. At that place, it was reasonable and sufficient to light them, and give notice to prepare to start, 15 minutes before the time of starting. That would have given the excursionists ample time to get on the cars in order. It does not appear from the plaintiff's evidence that there was a dangerous opening between the edge of the platform and the steps of the cars ; nor does it appear that she fell through an opening to the ground. The evidence is meager in this respect, when she might have easily made it plain, and failed to do so."

In Western Maryland R. Co. v. Herold (Md. June 17. 1891), 22 Atl. Rep. 323, the plaintiff, a visitor at a sanitarium, finding the car which had been switched into the sanitarium grounds open, and other passengers therein, entered a few minutes before its leaving time. A boy loosened the brake and the car ran down a grade, and plaintiff jumped off and was injured. Held, that such act was not per se negligence, and the fact that the railroad and the sanitarium had a regulation prohibiting passengers from entering until an official announcement that the car was ready was immaterial, where such regulation was not published or posted, and plaintiff had no knowledge thereof.

Contributory Negligence of Boy Stealing Ride on Switch Engine.-In Egley .v. Oregon R. & Ň. Co. (Wash. 1891), 26 Pac. Rep. 973, the action was brought against a railroad company for injuries to a boy of 9 years, while stealing a ride on the back foot-board of a switch-engine out of view of the engineer. It appeared that he was of ordinary intelligence, familiar with the working of a switch engine, and that he had been warned repeatedly by his father and servants of the company and others that he would get hurt if he went about the cars. He himself testified that he knew he might get hurt. Held, insufficient evidence to support a finding that he did not know it was dangerous for him to ride upon the engine. The fact that the company's servants failed to discover the boy was no evidence of negligence, especially when the company had issued a bulletin to allow no boys on the track, and its servants drove them away whenever they saw them there:

Injury to Person in Charge of Live Stock-Contributory Negligence. At Minnesota Transfer plaintiff delivered to defendant a car in which was his horse, some furniture, and other property, to be transported over its line of road to Sauk Rapids, under a contract by which he agreed to load, unload, and reload, and to feed, water, and attend the stock, at his own expense and risk, while at the company's stock yards or on the cars; and he assumed the duty of securely placing the stock in the cars, and keeping the same securely locked and fastened, so as to prevent the escape of stock. The car arrived at Sauk Rapids in the night. The plaintiff left the car for a few minutes, and, on its being placed on a side track, returned to it, and laid down. Soon after, he was injured by an engine running against the car. Held that, although not then a passenger, yet, if prudent attention to his horse rendered it proper for him to be in the car, (and of that the jury is to judge), he was rightfully re, and defendant owed him a duty of care to avoid injuring him. Orcutt v. Northern Pac. R. Co., 45 Minn. 368.

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(Oregon Supreme Court, June 24, 1891.) Ejection of Passenger for Failure to Produce Ticket or Pay Fare-Attempt to Retain Seat-Expulsion by Force. It is the duty of a passenger, if he has not the required ticket or token evidencing his right to travel on that train, although he has paid his fare to his destination to the conductor of another train who erroneously informed him that he could stop over, to

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pay his fare or quietly leave the train when requested, and resort to his appropriate remedy for the damages he has sustained; and if he attempts to retain his seat without paying his fare, and is expelled by the conductor, using no more force than is necessary, he can recover no damages for the injury incurred by such expulsion.

Presumption that Company Owning Road Operates it. When it is admitted that a railroad company is the owner of a railroad then being operated, a presumption arises that the same is operated by the company owning it, and the burden of proof is on such company to show to the satisfaction of the jury that such is not the fact.

APPEAL from Wasco Circuit Court.
W. W. Cotton and Snow & Gilbert, for appellant.
A. S. Bennett, for respondent.

Case stated.

LORD, J.-This is an action in tort to recover damages for the wrongful acts of the defendant's agents or servants in ejecting the plaintiff from one of its cars. There are mainly two questions presented by this record, but the controlling one arose substantially out of this state of facts : The plaintiff

, who is a stock dealer, had shipped stock from Grant's station to Portland, and had received from the railroad company a shipping contract which entitled him, upon the performance of certain conditions, to a passage from Grant's to Portland and return. Going to the office of the company earlier than its business hours, he was unable to get the ticket stamped, and otherwise perform its conditions so as to ride upon it, without taking a later train, so he went on the train then ready, and seated himself in the car. When the conductor came around for tickets, he presented to him his shipping contract, but it not being stamped, etc., as required, the conductor refused to receive it, and informed him that he must pay hiş fare, which the plaintiff did, giving the conductor a $20 gold piece, from which the amount of his fare from Portland to Grant's was to be taken. At this time, according to his testimony, he asked the conductor if he would be allowed to stop over at The Dalles, and go to Grant's on the next train, to which the conductor replied that he could do so, and that it would be all right. The conductor, not being able to make the neces. sary change for the fare, after an absence of about 20 min. utes, during which time he was engaged in taking up tickets, etc., returned with the change and a drawback check, which he delivered to the plaintiff. Upon the back of the drawback check was a receipt for the fare, but the check itself had printed upon it in large and legible words, “ Good for this day and train only.” The plaintiff does not seem to have given any attention to the check, or what was written or

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