In the summer of 1887, the plaintiff was in defendant's employ as a brakeman. His work was chiefly upon freight-trains, and one night in August, while he was upon such a train, there came a sudden signal from the engine, known as the danger-signal, to apply the brakes instantly. He ran as quickly as possible along the tops of the cars to reach the brakes; and while at work upon them, was struck by one of the defendant's bridges crossing the track and was severely injured. The Bridge was only four feet and ten inches above the tops of the freight cars. Plaintiff knew previously of its existence and location, and had several times passed under it without injury by stooping carefully when it was reached. But the night on which the injury happened was so dark that he could not see the bridge and did not realize that the train was close to it. And, besides, in his haste and excitement, and with his mind intent upon obeying the signal as quickly as possible, he forgot to think about the bridge, though before the signal came he had been lying down on one of the cars so as to avoid all chance of danger. The plaintiff sued the defendant on the ground of negligence, and the defendant relied as a defence upon contributory negligence and upon the doctrine that a servant assumes the usual risks of the employment. The case was tried before a referee who decided in defendant's favor, and judgment was entered accordingly. Plaintiff now appeals to this court.

DECISION.

The two questions which present themselves for consideration are whether, under the circumstances of the case, the brakeman can be charged with contributory negligence; and secondly, whether he can be regarded as having assumed the risk of low bridges over the railroad.

In regard to the first subject, there does not seem, upon the evidence presented, to be sufficient ground to charge the servant with contributory negligence. It is well settled that when acts which in and of themselves might constitute contribu

tory negligence, if not done under sudden excite. ment or to save one's self from imminent peril, are still done under such excitement and peril, they will not be deemed contributory negligence. It is, in general, negligent for a man to expose himself to danger; but when he does it hastily and unwittingly in saving his life from another immediate danger, the law does not call it contributory negligence. Thus, if a man in the hurry of getting out of the way of one train of cars which he saw suddenly to be close upon him at a place where he had a lawful right to be should, by reason of his sudden fright and excitement, get in the way of another train and be injured, it is held that he is not chargeable with negligence. In like manner in the present case, the brakeman knew of the existence of the bridge, but when the sudden signal came, he ran as quickly as he could, as it was his duty to do, and his forgetfulness was entirely due to haste and excitement and to the fact that his mind was eagerly intent upon obeying the danger signal The darkness also prevented him from seeing and realizing his danger, and under all the circumstances it seems proper to grant him the indulgence which the law does grant to one acting under great stress and imperative exigency, and to say that he ought not to be accountable for contributory negligence.

The second point is whether or not the servant, knowing the existence of low bridges over the railroad, will be regarded as having assumed the risk, and this is the question of especial difficulty in this case. Until recently the authorities were generally agreed upon this subject, that a brakeman upon freight trains, knowing of the existence of such bridges, and that their height over the cars was insufficient for a man to pass under them when standing erect, must be regarded as being in the position of any servant entering into an employ, ment knowing of the dangers and continuing in the employment subject to those dangers. They have therefore declared that the servant assumed these risks and could not recover therefor, if he sustained injuries therefrom. And if death occurred-as it often does from these accidents-it was held that there could be no recovery under statutes allowing recovery for injuries causing death. This doctrine seems so fraught with

danger, and railroad companies so liable to take advantage of the rule of law and to allow their servants to be exposed to such perils, that it has been denounced by recent text-writers.

Shearman & Redfield's latest edition of their treatise on negligence vehemently condems this doctrine; and Mr. Beach, in his work on Contributory Negligence, also does the same. Some few Western States, notably Indiana and Illinois, declare that in cases like this the railroad company is under a duty to use care to have these bridges of a sufficient height not to imperil life and limb. There is a case in the 104 Indiana Reports which is a leading authority to this effect. (B. & O. R. Co. vs. Rowan, 104 In., 88; see, also, C. & A. R. Co., 116 Ill., 206.) So we have a direct conflict of authority, the weight of authority still saying that the servant assumes the risk, and a few States saying that a master is under a duty to build bridges of a sufficient height.

Under the generally prevailing rule, the fact must be recognized that railroad companies feeling secure against damages have not been sufficiently careful to make all bridges of sufficient height where there is no special occasion to build such bridges, and they have built bridges only three, four or five feet above the tops of the cars. It would certainly seem, therefore, a most desirable thing to accomplish, if the companias could be required to so construct their bridges as to obviate such dangers. But the difficulty here is, that the law, in deciding such questions, must establish some great general rule. Shall we say that the law shall establish as a uniform rule for all railroad companies that they shall build their bridges of sufficient height to enable brakemen to stand erect? The difficulty with this view is that the rights of other persons must be considered, as e. g., the rights of persons who use the highways which the railroads cross. If railroad companies must always erect bridges high enough to allow a man to stand erect upon the cars, some bridges would certainly have to be made of excessive height and difficult for a person to cross over from one side to the other. This, therefore, makes the great difficulty, viz: the antagonistic rights and interests of different persons.

From these considerations, therefore, we may deem it a proper conclusion that in accordance with the weight of authority it can hardly as yet be regarded as a duty of railroad companies to build their bridges of a sufficient height in all cases, to allow brakemen to stand erect. On the other hand, it seems reasonable to say that there

The complaint alleges that the defendant in operating its road carries on its trains, to be used by its servants, Signal Torpedoes, which were apparently harmless; but, in fact, dangerously explosive; that on one occasion a train of defendant, carrying such torpedoes, was stopped by its servants at a water tank and station in a thickly inhabited neighborhood; that said servants took some of the torpedoes and wantonly placed them on the track in an exposed place, without any proper cause or necessity, but merely to have the train pass over and explode them; that defendant negligently failed to explode all these torpedoes and negligently left one unexploded, in plain view, at a place where persons had been for years accustomed to pass and where children were accustomed to go, without objection, to the defendant's knowledge; that plaintiff, a boy of ten years of age was, when the train stopped, standing near the station with several other boys of about his own age; that, just after the train had moved on, a boy nine years old, who, to defendant's knowledge, was coming along its road immediately behind this train, discovered the torpedo, and having no knowledge of its dangerous character, picked it up and carried it about 150 feet and showed it to the plaintiff and the other boys, who were all in like manner ignorant of its nature; that in attempting to open the torpedo, and without fault of the plaintiff's part, it exploded and caused plaintiff very severe injuries, to his damage $15,000, for which sum he demands judgment. Defendant demurs to this complaint, because it does not state facts sufficient to constitute a cause of action.

N. B. This is to be deemed an appeal from Harriman vs. Railway Co. 45 Ohio State Reports, II (1887).

DECISION.

This case comes to us as a demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action, and is a review of Harriman vs. Railway Co. 45 Ohio St., 11.

In that case, the judge discusses these general questions:

1. Whether the defendant was under any duty towards the plaintiff to keep its road in a safe condition.

2. Whether the negligence of defendant's servants was the proximate cause of the injury.

3. Whether it can be said that the servants were acting in the scope of their employment.

Of course, in regard to any one of these questions, if a decision can properly be given in defendant's favor, the demurrer would be sustainable. It is not necessary therefore, to consider all three, but we will pay attention only to the last. In regard to this, the opinion of the Ohio judges seems to be peculiarly weak. They declared that the acts of the defendant's servants in the use of the torpedo, were within the scope of their duty. In support of this opinion they cite certain decisions of the New York Court of Appeals. Nevertheless, these decisions do not support this conclusion. One refers to the act of an employee in recklessly putting a trespasser off the train. There, the sole ground of the decision was that the employer had given to the servant authority to take charge of the cars and see they were not trespassed upon, and in removing the trespasser the servant was acting in the line of his duty, and for the railroad company's benefit. Hoffman vs. N. Y. Central R. R. Co, 87 N. Y., 25.

In the case before us, the company provided the torpedoes for a legitimate purpose, and gave the servants authority to use them only in such a way. The servant took them on this occasion for a mere wanton purpose of his own to see what the effect would be of the explosion, a childish sort of amusement. It does not seem that it was done to perform any act with a view to the benefit of the railroad company, but that he simply made use of agencies put in his possession by the railroad company, for his own gratification. We cannot say that a master employer can be held liable for everything that an agent does, because he has put the servant in possesion of agencies aud instrumentalities which may be misused. Should such a view be taken, it would follow that a master would be liable for all the wrongful acts of a servant put in charge of a horse and carriage, whereas it is well settled that a servant may, in driving his masters horse, and causing injury by his negligence, depart entirely from the scope of his authority, and the master will not be liable. (Addison on Torts, § 550.)

The conclusion is that upon this point the theory of the Ohio court is not warranted by the weight of adjudication, nor by the authorities which it cites. The act must be deemed entirely out of the scope of employment, the same as if the servant had put the torpedo in his pocket and dropped it in a crowd of people while going home, or left it in a part of a city or village where people were accustomed to go, and somebody picked it up and was injured. Such acts could certainly not be considered within the scope of duty so as to render the employer liable.

The conclusion, therefore, is that in this case the demurrer should be sustained.

Chapter XI., Sec. V. Rules of the law of carriers as affecting receivers. A receiver of a railroad is liable for injury to passengers. Claims are paid out of the income of the railroad, Gibbs vs. Railroad, 15 S. C., 518. The Court may protect him as to property

over which it has control. If he voluntarily takes into his charge other property he is individually liable. 80 N. Y., 458. The general rule is that he is not personally liable if guilty of no negligence. 63 N. Y., 281. He is an officer of the court.

He differs from a sheriff on account of his office. Hall vs. Smith, 2 Bing, 256. Many decisions are collected in the two cases cited supra from New York reports. They are liable as carriers in their representative character in the following cases: 49 Vt., 255; 93 U. S. 352; 26 N. J. Eq., 474. In Massachussetts receivers are regarded as common carriers. 99 Mass.,

395.

A definition of the expression "act of God" is found in Nugent vs. Smith, L. R., 1 C. P. D., 423, on appeal reversing same case in 1 C.P.D. 19. The meaning of the phrase act of God had not been judicially passed upon in England until that case. See page 437.

The result of the decision seems to be that a common carrier is not liable for any accident as to which he can show that it is due to natural causes directly, or exclusively without human invention, and that it could not have been prevented by any amount of foresight, and pains, and care reasonably to be expected from him. See page 444. It had been held in the lower court, that damages by an act of God, was one which had been caused directly and exclusively by such a direct and violent, and sudden, and irresistible act of nature as the carrier could not by any amount of ability, foresee, or if he could foresee it, could not by any amount of care or skill resist it. This was held by the Court of Appeal to be erroneous. In this case a mare was being carried by sea from London to Aberdeen. There was rough weather, and the animal, partly on that account, and partly on account of her fright and consequent struggling injured herself so that she died. Held on appeal that the carrier was not liable, there being no negligence. All that is required by this decision is that there should be reasonable skill and care to avoid the operation of the act of God. See 13 Ill. Appeals 251.

Sec. XIII. As a general rule a connecting carrier is entitled to all the benefits of the original contract as well as to all the special exemptions it contains; for the same reason he is subject to all the obligations. Falkner vs. Hart, 82 N. Y., 422, and cases cited. Each of the connecting lines is only responsible for injuries on its own line except where there is an express contract for carriage beyond the terminus. 54 N. Y., 500; 64 N. Y., 260. Any carrier of the series is liable as such until delivery is made to the succeeding carrier. 55 Mich. 218. Cases as to connecting passenger trains collected in 35 Kan. 740. The rule as to passengers is denied in some of the states. See 112 Ill., 296, 302, where it is ruled that the coupon tickets are to be regarded as distinct tickets sold by the first company as agent for the other. 17 Vroom, 643, contains a good statement of the general rule.

Sec. XIV. Passenger business. There is always a preliminary question whether the relation of carrier and passenger has, or has not been created. If for example a person should come upon the vehicle of the carrier without his knowledge or consent, the carrier would owe no duty to him, and would not be liable for negligence. On similar grounds, if a conductor of a freight railway train, in opposition to the advertised rules of the company, should allow a person to ride free, there being no passenger car attached, the relation would not be created, and the company would not be responsible for negligence. Eaton vs. Ry. Co., 57 N. Y., 382. The relation of street railroad carrier and passenger is established when the car having stopped for him he is in the act of stepping on the platform. 137 Mass., 210; same point 32 Minn., 1. The degree of care is not fixed solely by the relation of carrier and passenger. It is measured by

the consequences which may follow the want of care. A railroad company is held to the highest degree of care to passengers in the management of trains on account of the extreme peril of the business, and because passengers cannot protect themselves to greater care than in regard to the condition of its station grounds. 141 Mass., 31, 33. Proof that the injury was the result of an accident which could not ordinarily happen if the track and machinery were in proper condition suffices in the first instance, and the burden of proof is then cast on the carrier to show due care. 95 N. Y., 562. Failure to provide seats on a ferry boat for a particular person is not negligence, provided that there were enough for those who customarily preferred to be seated. 104 U. S., 474. Want of a seat is no excuse in steam railroad transportation for refusing to obey an order of the conductor to stand inside, if there is room. 105 N. Y., 525.

Sec. XV. Contracts and notices as affecting the common law liability of carrier.

I. Clauses in bills of lading and other commercial documents sufficiently communicated.

(1.) Reducing liability as insurer.

(2.) Withdrawing liability for any cause whatever.

(3.) Same for negligence specifically mentioned. 17 Wallace, 357; and cases cited, 112 U. S., 338; 71 N. Y., 180.

II. Notices posted on walls of station. or printed on passenger tickets limiting or denying liability.

III. Notices requiring disclosure of value of packages, and fixing value if no disclosure. 53 N. Y., 652; 56 N. Y., 168; 62 N. Y., 35; 70 N. Y., 410; Hart vs. Penn. Ry. Co., 112 U. S., 331. A valuation may be made by a distinct agreement. to cover loss by negligence. 112 U. S., 331. Courts dissenting from this view

are those of Missouri, Ohio, Wisconsin, Kansas and Minnesota.

IV. Notices of a precautionary character, e. g., to passengers.

V. Notices fixing the time within which the right to transportation must be exercised. 63 N. Y., ΙΟΙ.

for a

A sale of a "limited ticket and continuous passage" is held to mean a continuous passage by the original purchaser of the ticket. Such a ticket is not transferable. Walker vs. Wabash Ry. Co., 15 Mo. App., 333. A commutation ticket, e. g., thousand miles, may be so limited as not to be transferable, and the face of the ticket must be regarded. 15 Ill. App., Ico, On a ticket limited to so many days it is enough that the passenger commences his trip before the days expire. It is not necessary that he should have finished it. 66 Cal., 191. It is a fraud for a person to make use of a non-transferable commutation ticket to personate the one to whom it was issued and the relation of carrier

and passenger will not exist in such a case. Way vs. Railway Co. 64 Ia., 48.

Sec. XVI. Ladies clothing of the value of ten thousand dollars was held in one case under special circumstances to be baggage. 100 U. S., 24. Samples in

trunks of commercial travellers are not baggage in general. 73 Ill., 348. If sample trunks are treated by both parties. as baggage, there is an estoppel. 63 Wis, 100. Expressmen who carry trunks. for hire are liable without reference to the question whether their contents are strictly baggage or not. 74 Ill., 116. INTERPRETATION AND CONSTRUCTION.

Part II. There is a so called science of interpretation, &c., which applies to all written language. In this aspect interpretation consists of a set of rules and principles resorted to for the purpose of