seen. Things which are possible may never happen, but those which are natural or probable are those which do happen, and happen with such frequency or regularity as to become a matter of definite inference. To impose such a standard of care us requires, in the ordinary affairs of life, precaution on the part of individuals against all the possibilities which may occur, is establishing a degree of responsibility quite beyond any legal limitations which have yet been declared. We are of opinion that, in the fact of the present case, that direct and immediately producing cause of Mrs. Trich's injury was her being struck by a runaway horse and buggy over which the defendant company had no sort of control, and for which it is not responsible; and therefore we conclude that the proximate cause of the injury, in the legal sense, was the collision of the horse and buggy with the person of Mrs. Trich, and not the negligence of the defendant.

The case of West Mahanoy v. Watson came again into this court, and is reported in 19 Wkly. Notes, Cas. 411. The present chief justice, in delivering the opinion of the court, said: "These facts narrow the case down to the single question, Was the upset at the ash-heap on the township road the immediate or direct cause of the loss of the horses? As we have seen, the facts themselves answer this interrogatory in the negative, and necessarily determine the case in favor of the plaintiff in error. In the case of Hoag v. Railroad Co., 85 Pa. 293, Mr. Justice Trunkey, then president of the common pleas of Venango county, in his charge to the jury on the trial of the above-named cause, said: The immediate, and not the remote, cause is to be considered. This maxim is not to be controlled by time or distance, but by the succession of events. The question is, Did the cause alleged produce its effect without another cause intervening? or was it to operate through or by means of this intervening cause?' As the principle here stated was adopted by the affirmance of this court, following Railroad Co. v. Kerr, 62 Pa. St. 353, we may regard it as the settled law of this State."

In the facts of the present case we find a perfect illustration of this principle. Mrs. Trich herself testified that when she was "bounced" from the car she fell on her feet. Immediately after, she was struck by the runaway horse and buggy, and from them received her injury. The jolting from the car simply landed her on her feet, and inflicted no injury. But another agency intervened, which was entirely independent of any act of the defendant, and that agency alone inflicted the injury in question. Following the doctrine of the last case cited, we feel clearly obliged to hold that the plain

tiff's injury was inflicted by the special intervening agency stated, and therefore the defendant is not liable. In all of the cases cited, as in several others not referred to, this court finally determined them upon its own view of the facts, without regard to the verdicts of the juries.

The defendant's point should have been affirmed. Judgment reversed.

Proximate Cause Defined.-See Eames v. Texas & N. O. R. Co., 22 Am & Eng. R. R. Cas. 541; note to Sheffer v. Washington City, etc., R. Co. 8 Ib. 62.

WALLACE

ข.

WESTERN NORTH CAROLINA R. Co.

(98 North Carolina, 94.)

Passenger-Freight Train-Contributory Negligence-Switching. The dangers naturally incident to travel by rail being greater on freight than on passenger trains, and calling for a corresponding higher degree of care on the part of the passengers, a passenger in the caboose of a freight train which has stopped to do some switching, who knows or might know that cars will probably be backed against the part of the train to which the caboose is attached, and that there will consequently be some concussion, and who without thinking leaves his seat, standing up in the car, and is thrown down and injured, is guilty of contributory negligence in so standing up; if he would have escaped injury by keeping his seat.

APPEAL from Superior Court, McDowell County.

Action by W. J. Wallace against the Western North Carolina R. Co. to recover damages for personal injuries. Defendant appeals from a judgment for the plaintiff. The facts are stated in the opinion.

P. J. Sinclair and W. H. Malone for plaintiff.

D. Schenck and C. M. Busbee (Erwin & Price, of counsel) for defendant.

DAVIS J.-Civil action tried before McRae, J., at spring term, 1887, of McDowell superior court. In November, 1885, the plaintiff was a passenger on a freight train of the defendant company, going from the town of Old Fort to the town of Marion; and he alleges, substantially, that, for want of due care and attention, the locomotive to

Facts.

which the train was attached was overloaded, causing it to "stall," and, by the careless, unskilful, and negligent management of the servants and agents of the defendant company, it was driven with such terrible force against the cars of the defendant as to cause the car in which the plaintiff was to be jerked and jarred with such force as to violently throw him down within said car, whereby he was greatly cut, bruised, and wounded, and had his leg badly fractured and broken, etc., and for his said injuries he claims $8000 damages. The defendant company answers, denying the material allegations of the complaint, and for a further detence says plaintiff by his own negligent conduct contributed to his injury; that he was a passenger on a second-class car on a freight train, and knew it was not as safe and comfortable, or as easily managed and controlled, as a passenger train, and consented to the ordinary risk incident thereto, such as sudden jerks and starts or stops, etc.; that he knew the inconveniences of the seats and their condition, and assumed such risks as necessarily grow out of such appurtenances, and was bound to exercise more than ordinary care for his own safety, and that he failed to care for himself as he ought under the circumstances. There was evidence on behalf of the plaintiff, who was a passenger on a freight train of the defendant company from Old Fort to Marion on the seventh of November, 1885, tending to show that the train was behind time and overloaded; that at an up grade it stalled and stopped; that attached to the train was a caboose for passengers, with seats running along the sides,-one bench on each side; that a passenger in the caboose, named Clinard, with his arm in a sling, had a coat and bottle of liniment, which, upon a sudden jerk of the car, had fallen to the floor, and the plaintiff had picked it up, and was standing; that the train had jerked a number of times, and by a sudden and severe jerk-" crash," one of the witnesses termed it-the plaintiff was thrown to the floor, and had a bone of the thigh broken. It was also in evidence that the plaintiff knew that it was a freight train, had lived on the line of the road, had seen long freight trains, and "the engines starting them;" that there was plenty of room to sit down, and the plaintiff was near a seat, and that the other passengers were seated. One of them, W. H. Murphy, a witness for plaintiff, testified that "the train had stalled and jerked several times. He kept his seat. Was afraid of their running back to get a start, and knew they were pretty rough about starting." There was also evidence as to the nature and extent of plaintiff's injury, and of want of proper care and attention on the part of the conductor There was evidence on behalf of the defendant tending to

show that the conductor and engineer was careful and skilful; that the engine was in perfect order; "that there were no defective cars, and that the hands were competent, prudent, and reliable. The track was in good order, but wet, and that the stall resulted from a wet rail. That the engine was not overloaded, and that the running back of a car, and slipping and jerking, in running of freight trains, is not unusual; it happens every day." That there is a difference in the coupling of freight trains from that of passenger trains, that causes the difference in the jerking. On the freight trains there is a "space or slack" of six or eight inches between each car. The advantage of this is "that, if it is all tight, you have the full weight of the train at the start; with the slack, you get the engine in motion before you get the full weight of the train." The evidence is set out in full, and sent up with the record, but, in the view we take of the case, it is not necessary to state it fully here.

signed.

The following issues were submitted, without objection: "(1) Was the plaintiff injured by the neglect of the defendant, as alleged in the complaint? (2) Did the plaintiff Issues subcontribute to the injury by his own negligence? mitted-In(3) What damage has plaintiff sustained?" The structionsdefendant asked the court to charge the jury: Errors as(1) That a passenger on a freight train accepts it, and takes it, and travels on it, acquiescing in the usual incidents and conduct of a freight train, if managed by prudent, competent men. (2) That in the movements of freight trains the jerking is inevitable, and is not ascribable to negligence or want of skill or improper management on the part of the agents of the company. (3) That it is not to be expected a company will provide its freight trains with all the conveniences and safeguards against danger that are required in the operation of passenger trains. (4) It is the duty of a passenger in a train to take ordinary care of himself. If danger is apparent or expected, he is to see and know it. (5) It is usual and proper for a passenger to remain in his seat; and especially so on freight trains, where he has reason to believe there is danger in any other position than being seated. (6) That there is no evidence that the engine or locomotive was overloaded. (7) That there is no evidence of careless management of the locomotive or cars on part of agents of defendant on this occasion. (8) That in review of, and in the light of, the evidence in this case, the injury was an accident, and not the result of negligence. The defendant assigns as errors (1) the refusal of his honor to charge as requested; and (2) that his honor erred in instructing the jury that there was no evidence of contributory negligence on the part of the

plaintiff, and that they must respond to the second issue "No."

Contributory negligenceQuestion for jury.

The charge of his honor is set out in full, but, as we think there was error in instructing the jury that there was no evidence of contributory negligence, it is not necessary for us to consider how far the prayer for instructions, though not given in the form requested, was substantially met by the charge as given, or whether the charge did not cover the instructions asked for in the full extent to which the defendant was entitled; and we may say that we think the defendant was not entitled to the sixth, seventh, and eighth instructions at all. In Smith v. Railroad Co., 64 N. C. 235, it is said: "When the facts are agreed upon, or otherwise appear, what is ordinary care is a question for the court. When the facts are in dispute, the proper course for the judge is to explain what would be ordinary care under certain hypotheses as to facts, and have the jury to apply the law to the facts as they may find them." The same rule applies to negligence and to contributory negligence. If there is any evidence from which the jury may find facts constituting contributory negligence, it should go to the jury.

Evidence to

utory negli gence.

Was there any evidence tending to show contributory negligence in this case? We think there was. A caboose attached to a freight train does not furnish all the appliances and conveniences for the safety and comfort of passengers that are provided for passenger trains; and while it show contrib is the duty of the company carrying passengers on such a train to exercise every reasonable care, and take every precaution against injury or danger to the life of such passengers which the appliances for that mode of transportation will admit of, it is also the duty of the passenger who travel on such a train, with full knowledge of the increased risk incidental thereto to be correspondingly careful in guarding against injury by reason of the risk incidental to such mode of travel. An act may be negligent or not according to the attendant circumstances. An act on a regular passenger train, with air brakes and other appliances to secure smooth and comfortable, as well as safer, travel may not be at all negligent in the passenger; while the same act on a “ caboose, "attached to a freight train, might be careless and negligent. It is a fact of common knowledge that even on a passenger train, with every appliance for comfort and safety that can be devised, there is more or less of jar and jerk incident to the starting and stopping of trains; and it is in evidence in this case that such jars and jerks are much greater on freight trains, and necessarily so, by reason of their character.