HOSPES .". CHICAGO, M. &: ST. P. RY. CO.
could not gainsay it. Wall v. Trumbull, 16 Mich. 233, and the cases there cited; Nor was he liable for the loss by fire, unless upon the ground that his wrongful act brought the goods within its reach, for it is not'shown to have occurred through on his part. The conversio1l; if.it took place, was considerably prior to that time, and the rights of the parties had become fixed. I am therefore of opinion that the verdict of the juryup()n the facts ought not to be disturbed, and that the judgment is in accordance with legal right. The motion must be overrUled.
HOSPES tI. CHICAGO,
M. &; ST. P. Ry. Co.
(Circuit Cour",D. Minnesota. February, 1887.)
CAJmIEll8-PASSENGER TRAVELING ON A PASS, INJURED.
Plaintiff was traveling on a railroad on a free pass, and about to enter a car, when the door was suddenly closed by the porter of the car, with such violence that he was thrown down, and injured his knee. Held, the railroad was bound to exercise a high degree of care for the personal safety of plaintiff, though he was traveling on a pass, but there must be reasonable proof of negligence. Proof of the mere fact that plaintiff was inj ured on the train by the door being shut against him does not, of itself; amount to negligence, where the carriage was gratuitous.1
This action is brought to recover damages for personal injury caused by negligence as alleged. The plaintiff is a citizen of the state of Minnesota, and defendant is a corporation organized under the laws of the state of Wiscopsin. The plahltiff was traveling upon a free pass, upon the back of which was printed, substantially, the following indorsement: That the plaintiff accepting this pass, in consideration thereof, agrees that the company shall not be Hable for an injury to the person by the negligence of its agents, or otherwise. Plaintiff testified "that he was passing from the dining car into one of the sleeping cars in company with other persons, all of whom had a right to be in the sleeping car, and that immediately after the rest of the party had passed into the car, he, being the last one to cross the platform, raised his foot to place it upon the threshold of the door, when it was shut with such violence that a blow upon his knee threw him back across the platform of the car, onto the railing, and broke the skin of his knee." He further testified" that, in conversation with the porter of the car, had with him immediately, the porter expressed his regret at having shut the door upon him; and a short time thereafter, in another conversation, stated that it was a wonder that he was not killed, as it
(the door) like a bullet out of a gun, but that he did,n't know that uny Qne else was coming after the rest of the company entered the car, abd, didn't suppose there was." . ,When the evidence of the plaintiff closed, the defend!!-nt requested the court to instruct the jurythitt the plaintiff could not recover, for the reasOn that the carriage 'was gratuitous,lj.nd acceptedeupject to the conditions indorsed. :upon the back, .of the free::pass, which request was reand no exception was taken fused. There was a verdict to the charge of the court. A motion is mlj-de by the plaintiff for a new trial, and it is urged that the verdict is contrary to the evidence. The only evidence of negligence is as above stated. It is insisted that the fact that an injury happened to the plaintiff raises a presumption of a want of care, and throws upon the defendant the burden of disproving it, which was n9t done. Olapp &- Macartney, for plaintiff. Flandrau, Squires &- Outcheon, for defendant.
J. I shall not dispute the doctrine ofthe plaintiff's counsel, squarely announced and insisted upon, that the engagement of a railway company, when a carriage for hire exists, is to carry safely, and if an accident occurs, and a passenger is injured thereby, proof of the accident makes out a prirna.jacie case against! the carrier; but here no contract existed between the plaintiff and the defendant, and the carriage was a gratuity. The duty imposed upon the defendant was to exercise a high degree of care for the personal safety of the plaintiff, so that a jury, in considering the proof of the act which caused the injury to the plaintiff, must also examine into and consider, in connection with the proof of the act, all the surrounding circumstances, and determine whether it was negligence. It is immaterial from which side the circumstances are detailed in the evidence. There must be reasonable proof of negligence upon the part of the defendant, and it is the province of the jury to determine its suftlciency. The r}lle laid down by the United States supreme court, and cited by counsel for plaintiff, applies to a case of carriage for hire; Proof of the n1ere fact that the plaintiff was injured on the train by phe door being shut against him, without more, does not amount to negligence, if the carriage is gratuitous. Motion for new trial denied.
NEW HAMPSHIRE LAND Co. v. TILTON and others.
(Oircuit Court, D. New Hamp8nVr6. February 8, 1887.)
OosTs-TAXATION-l'LEA AMENDED BY ORDER OF COURT-COST OF SURVEYS OIl' LAND-COMPLIANCE WITH ORDER. .
Where, in an action at law to recover the possession of certain lands, the defendant is ordered by the court to make his plea more certain, and, in order to enable defendant to file a proper plea in accordance with such order, it becomes necessary for him to make surveys and plans, the expense of such surveys and plans is not apart of defendant's taxable costs.