passengers stood upon the running board of the same as well as the other side of the car. At the point where the plaintiff embarked there was but a single track. Further on, in the direction the car was travelling, the track was double. A car of like form on the other track, and carrying passengers upon the running-board, met the car which carried the plaintiff. The space between the two cars was not sufficient to permit persons to pass with safety standing upon the inner runningboards of the passing cars, and in the passage of these cars the plaintiff was thrown by contact with a passenger standing on the running-board of the other car, and was injured. For this, suit was brought, and the plaintiff recovered damages. To reverse the judgment, this writ of error is brought.

The bill of exceptions sealed and sent with the record in this case presents the question whether the trial court erred in law in refusing to nonsuit the plaintiff at the close of his case in response to the request of the defendant. The suit was for negligent injury to the plaintiff below (the defendant here), received by the defendant while a passenger on a car of the plaintiff, being transported over its line. It is not contended seriously that, at the close of the defendant's case, there was not evidence to go to the jury in support of the averred negligence of the company. The ground relied upon in the defendant's defeat was that he, by his own carelessness, materially contributed to his own injury, and that this appeared in the evidence in his own behalf. There is no doubt as to the legal rule that negligence on the part of a plaintiff such as contributes to the injury of which he complains, when discovered through his own testimony, will preclude his right of recovery. Railroad Co. v. Moore, 24 N. J. Law, 268, 824; Runyon v. Railroad Co., 25 N. J. Law, 556; Drake v. Mount, 33 N. J. Law, 441; Railroad Co. v. Mat- Failure to thews, 36 N. J. Law, 531; Railroad Co. v. Toffey, grant non38 N. J. Law, 525. And it is also settled that a refusal of the court to nonsuit on request, where such ground exists for the motion, is legal error. Railroad Co. v. Ward, 47 N. J. Law, 560; s. c., 25 Am. & Eng. R. R. Cas. 359. Whether, then, the court was wrong in its refusal to nonsuit must depend on the existence in the testimony of such proof of fault and imprudence on the part of the defendant exposing him to injury as in the eye of the law is culpable. If the testimony left that question in doubt, it was for the jury, and not the court, to determine. To determine this, the facts which are not in dispute must be adverted to. The defendant was riding upon an open car drawn by two horses. When he was invited to enter, the seats and platform of the car were filled, and he was obliged to take his place, with others, on the foot

Contributory negligence

suit.

board, running longitudinally with the car. The roof of the car was supported by stanchions, or posts, opposite to one of which the defendant placed himself. At the point where he entered this car the company had but a single track. Further on, the track was double, with a space of two feet eleven inches between the nearest rails of the two tracks. Two cars of the sort the defendant was riding on, passing each other on this double track, would be separated by about ten inches along the edges of the two nearest foot-boards, which footboards were about nine inches wide each. A person might stand on one foot-board, and pass a car on the other track, without injury if the foot-board of the car on such other track were free from passengers. There was not room for persons standing on these foot-boards to pass each other in safety if both foot-boards were occupied by passengers. The plaintiff below was knocked off his car, and injured, by colliding with a passenger standing on the foot-board of a like car of the company passing in an opposite direction along the double track. The plaintiff in error contends that the position of the defendant was obviously so dangerous a one that to take it was in in se negligent. The plaintiff below was a stranger to this road, unfamiliar with its construction, equipment, and management. Where he entered the company's car, the track was single, and there is nothing shown to indicate knowledge on his part that it was different elsewhere. He was invited by the agent of the company to take a position on the car and, when so invited, the only position left for him was that which he assumed. It was therefore taken with the assent of the company's agent. It appears to be the practice of the company to carry passengers there. Not only on the car which he boarded, but on the car with which he collided, passengers were being carried in the same way. The mere fact of riding on a platform of a street car is no conclusive proof of negli gence. Nolan v. Railroad Co., 87 N. Y. 63; Meesel v. Railroad Co., 8 Allen, 234; Fleck v. Railway Co., 134 Mass. 481; s. c., 16 Am. & Eng. R. R. Cas. 372. In Meesel v. Railroad Co., supra, it is truly said "that the seats inside the car are not the only place where the managers expect passengers to remain, but it is notorious that they stop habitually to receive passengers to stand inside the car until the car is full, then to stand upon the platforms until they are full, and continue to stop and receive them even after there is no place to stand except on the steps of the platform. Neither the officers of this corporation, nor the managers of the cars, nor the travelling public seem to regard this practice as hazardous, nor does experience thus far seem to require that it should be restrained upon the ground of its danger. There is, therefore, no basis.

upon which the court can decide on the evidence that the plaintiff did not use ordinary care." In that case the plaintiff was injured by being thrown from the platform of a moving car. It has been asserted as a rule of law, that a carrier who assigns a passenger in his charge to a position of danger may not, in case of injury, set up the passenger's acceptance of such a position as contributory negligence, but is estopped from so doing. A rule so broadly stated must admit of many exceptions. The duty of a carrier in transporting passengers is one which calls for a high degree of care, but it is not one amounting to absolute assurance of safety. He has not control of the person of the passenger. He has the right to adopt and enforce reasonable rules for the safety of his passengers, and to these, when made known to him, the passenger is bound to conform. The passenger is at liberty to conclude that rules or directions of the carrier, assigning him to place or position, are subservient to the duty which the carrier owes him, and that he may take such position in safety, unless to do so would be a blind surrender of care and judgment for his own safety, or an inexcusable failure to use his senses to that end. It certainly cannot be contributory negligence that he, at the invitation of the defendant, exposed himself to risk of danger created by the defendant, and of which he did not know, and of which no warning was given. The position of this outside platform undoubtedly was attended with some risks and exposures. One riding in that manner is chargeable with the knowledge that the public highway on which the track lies is used in all its parts by the ordinary vehicles of travel; that there is a liability of collision with such vehicles in passing; and, had the plaintiff received his injury from such cause, it may be that negligence contributing to his injury would be imputed to him. But he was not presumed to know that the company's road was so constructed, or its cars so new, as to render a position in which it invited him to ride a dangerous one. If the question of contributary negligence was raised by the case, it was one for the jury, and there was no error in refusing to nonsuit, and submitting that question to them. The judgment should be affirmed.

See Hill v. Ninth Ave. St. R. Co., and note, ante, p. 522; Topeka City R. Co. v. Higgs, and note, ante, p. 529.

INTERNATIONAL AND GREAT NORTHERN R. Co.

V.

UNDERWOOD.

(Texas Supreme Court.)

Passenger--Personal Injuries-Complaint-Sufficiency.--A complaint in an action to recover for personal injuries sustained by a passenger, which alleges a contract to transport the plaintiff over the line of defendant's road, but does not specifically allege that the point at which the accident occurred is between the place of departure and that which defendant contracted to carry plaintiff, is sufficient on demurrer, if it appears from the complaint that plaintiff received the injuries complained of while being carried under the contract.

Same-Lease of Road-Liability of Lessor.-A railroad company has no power to lease or transfer the control of its road without statutory authority, and a plea by the lessor of a railroad, in an action to recover damages for personal injuries, that it had leased the railroad at the time of the accident, is not sufficient, except the defendant pleaded a special act conferring the power, or unless authority to do so be conferred by the general statute.

'APPEAL from Circuit Court, Bexar County.

Action to recover damages for personal injuries. The case is stated in the opinion.

McLeary & Barnard for appellant.

Houston Bros. for appellee.

Facts.

GAINES, J.-This action was brought in the court below by appellee against appellant, to recover damages for personal injuries. The statement of facts having been stricken out on motion of appellee at the last term of this court, there are many questions raised in appellant's brief which we need not consider. By it first and second assignments of error, appellant complains that the court erred in overruling its general and special demurrers to plaintiff's petition. The main ground of the demurrers is "that the petition nowhere alleges that the defendant undertook to transport plaintiff as far northward from San Antonio as Corbin station, where the accident is alleged to have occurred." The allegations in the petition in reference to this matter are "that heretofore, to wit, on or about the third day of July, 1883, the defendant, acting as a common carrier of passengers and freight, for a valuable consideration, undertook to transport the plaintiff as a passenger over the said line of road northwards from San Antonio, towards St. Louis,

6

Missouri; that the plaintiff, on said third day of July, 1883, at the instance of defendant, and under the instructions and directions of its officers, agents, and employees, entered the car, or caboose,' of the defendant, provided for his use and occupancy, and the defendant, acting through its agents, officers, and employees, started said car and train on its journey over its line of road to the northward; that the plaintiff conducted himself in a prudent manner, and was guilty of no negligence or imprudence whatever; that when said car and train reached Corbin station, about 20 miles, more or less, from San Antonio, on the defendant's line of road, which was about'11 o'clock at night on said date, the defendant, by it gross negligence and outrageous carelessness in the management and running of the trains on said road, caused the car on which the plaintiff was, it being the car furnished by the defendant for his use and occupancy, to be run into by another engine and train of said defendant, breaking the said car, scalding, burning, bruising, wounding, and crippling this plaintiff, throwing him from said car, dragging him upon the track and road-bed, breaking his bones, crushing his body and limbs, tearing his clothes, and mutilating him in a horrible manner."

Sufficiency of complaint.

It is true that it is not here specifically alleged that the point at which the accident occurred is between the place of departure and that to which it was contracted that plaintiff should be carried. But we think that it appears from the averments, that the plaintiff received the injuries complained of while he was being carried by defendant, under its agreement, and that greater particularity than this cannot be required. We are of the opinion, therefore, that the exceptions to the petition upon this ground were properly overruled.

There were other special exceptions to the effect that the averments of the petition were not sufficient to warrant a judgment for exemplary damages, as therein claimed. But plaintiff distinctly waived his claim for such damages upon the record before the trial of the cause; and it seems from the appellant's briefs that the exceptions based upon this ground were not insisted upon in this appeal.

Lease of road

It is complained by the fourth assignment, that the court erred in sustaining plaintiff's exceptions to so much of the defendant's answer as set up a lease for 99 years, made in 1881, by the defendant company Authority to Missouri, Kansas & Texas R. Co., of defendant's to leaseroad and property, and a subsequent lease by that lessee to the Missouri Pacific R. Co., which lastnamed corporation defendant averred was operating defend

Pleading.