PASSENGER-Continued.

2. A passenger who alights from a slowly moving train at the instance or di-
rection of the conductor, or other agent in management of the train, on whose
opinion or judgment in the matter he has the right to rely and when the risk
or danger is not apparent, is not chargeable with negligence.

Company is bound to supply a sufficient platform. Id.

Id.

3. A passenger who has just landed from a steamboat is not so identified
with the steamboat company as to make the company solely liable for an injury
suffered by the passenger from another quarter immediately afterwards. Malm-
sten v. Marquette, etc., R. R. Co. 291.

4. It is the duty of those in charge of a railway train on approaching a station
where such trains stop upon being flagged so to do, to be on the alert, and look
out for such signal and stop when it is given. Morse v. Duncan, 374.

5. On trial of an action against a railroad company for injuries to the plain-
tiff, while riding as a passenger in a car of defendant's train, which was thrown
from the track by a broken rail, or the breaking of a rail, an instruction under-
taking to define a safe rate of speed by its comparison with the velocity "prac-
tised before, with the tacit consent of the community, and without accident,"
assumed a false criterion, and was erroneous. Cleveland, etc., R. R. Co. v.
Newell, 377.

6. The mere fact of the rails being broken constitutes in such case a prima facie
presumption of negligence. Id.

7. The principle that, where a passenger is injured while in course of trans-
portation by a common carrier, proof of the occurrence of the accident con-
stitutes prima facie proof of negligence on the carrier's part, applies equally
whether the cause of the accident is attributed to the machinery, or to the act
or omission of the carrier's servants. Ohio and M. P. Co. v. McCool, 390.

8. A passenger, who, instead of occupying a coach, remains, without neces-
sity therefor, in the baggage car, knowing the fact that he is in more danger
there than in a coach, and thus remaining, receives injury in the wreck of the
train, which he would have avoided had he remained in the passenger coach, is
guilty of contributory negligence, and cannot recover on account of injuries
received under such circumstances. Houston, etc., R. R. Co. v. Clemmons,
396.

9. A carrier of passengers by rail should have all the skill and foresight used
in operation of its road, which belongs to persons whose services it is reasonably
practicable for it to obtain. Such a carrier cannot excuse itself from responsi-
bility for the acts of an unskilful, imprudent, or negligent servant on the ground
that it was impracticable to obtain any other. Louisville, etc., R. R. Co. v.
Weams, 399.

10. A passenger's negligence in going to the platform of a car while it is still
moving does not affect his right to recover for an injury suffered in properly
alighting after the train has stopped. Wood v. Lake Shore, etc., R. R. Co. 478.
11. Where a passenger standing on the wrong platform was struck and killed
by a train, the cars of which projected over the platform: Held, that the ques-
tions of negligence and contributory negligence were for the jury. Dociecki v.
Sharp, 485.

12. Alighting from a train of cars while in motion at some speed is sometimes
negligence, but this is not necessarily so where the question is one of compara
tive negligence. Chicago, etc., R. R. Co. v. Bonifield, 493.

13. Where a jury has found that the act of a passenger in alighting from a
train, at the time and under the circumstances appearing, was slight negligence,
and the negligence of the servants of the railroad company in starting its train,
when compared with that of the passenger, was gross, and such finding is sus-
tained by the Appellate Court, it is conclusive on this court, and cannot be re-
examined. Id.

PLEADING, 94, 155, 343, 717.

See FIRE, 3, 4; LEASE; MASTER and Servant, 9, 10, 26.

1. Where a good answer is held bad on demurrer, and subsequently on the
trial evidence is offered in support of it under a paragraph which did not au-

thorize the admission, an Appellate Court will nevertheless reverse for the origi-
nal error. Louisville, etc., R. R. Co. v. Orr, 94.

2. A party suing for a negligent injury is bound to set forth in his declaration
the material facts relied on as his cause of action and to prove the same combi-
nation of circumstances. Batterson v. Chicago, etc., R. R. Co. 123.

3. Declarations are construed with reasonable intendments, and their terms
are read and applied in the natural and usual sense and without supposing quali-
fications which, though possible, are not fairly indicated. Id.

4. General and indefinite allegations should be stricken out or ordered to be
made certain. Refusal to do this is ground for appeal. Pugh v. Winona, etc.,
R. R. Co. 182.

5. A complaint may be amended as of course, and without the leave of the
court, by altering the name of the party plaintiff at any time before the filing
of defendant's answer. Pittsburg, etc., R. R. Co. v. Martin, 253.

6. What is sufficient allegation of negligence in declaration for injury to per-
son at crossing.

Id.

7. In an action against a railroad company, to recover damages for personal
injuries, it is not necessary that the complaint should negative contributory neg-
ligence on the part of the plaintiff, that being a matter of defence only. Mobile,
etc., R. R. Co. v. Crenshaw, 340.

8. It is sufficient, as a general rule, to aver in the complaint the facts out of
which the duty to act springs, and that the defendant negligently failed to do
and perform, etc.; and it is not necessary to define the quo modo, or to specify
the particular acts of diligence he should have employed."

9. When, in a count in a declaration, special damages are laid, some grounds
of which are good and some bad, a general demurrer to the entire count will not
be sustained. Hendrickson v. Penn. R. R. Co. 368.

10. In an action for an injury to the person it is not necessary for the plaintiff
to allege in his declaration and prove that he was exercising ordinary care, and
was not therefore guilty of negligence, which contributed to his injury. Fowler
v. Baltimore, etc., R. Co. 480.

PRACTICE, 480, 702.

See CORPORATION, 2; DAMAGES, 11.

1. The court will not reverse for refusal to grant time to prepare points, where
the case is a simple one. Atchison, etc., R. R. Co. v. Frazier, 72.

2. The ruling of the court, sustaining a challenge to a juror for cause, al-
though not justified by the facts disclosed in his examination, is not error for
which a judgment will be reversed, when he might have been challenged per-
emptorily by the same party, and it not appearing that the defendant was preju-
diced by such ruling, the cause having been tried by a competent jury. Herbert
v. Northern Pacific R. R. Co. 85.

3. An Appellate Court will not reverse for an erroneous instruction where the
jury find specially in answer to an interrogatory that the facts to which the in-
struction is applicable do not exist. Louisville, etc., R. R. Co. v. Orr, 94.

4. A motion to arrest testimony from jury involves an admission of all the
facts which the evidence tends to prove, and presents only a question of law for
the court; but if there is evidence tending to prove each material fact put in issue,
and indispensable to a recovery, it should be submitted to a jury under proper
instructions. Dick v. Indianapolis, etc., R. R. Co. 101.

5. Where a motion was made in the court below for judgment on special
finding of fact, if it was necessary in granting the motion to assign reasons there-
for, and those reasons are not contained in the abstract, and any good reason
could be assigned, the Supreme Court will presume it was assigned and sustain
the ruling; but where no good reason is suggested, and it appears that there can
be none, the ruling is erroneous. Baird v. Chicago, etc., R. R. Co. 128.

6. Special findings constitute part of the record, and in the absence of any
showing to the contrary the court is justified in assuming that all the special
findings are therein contained. Id.

7. Where a new trial is asked on the ground that the verdict is against law,

PRACTICE-Continued.

and it appears that the jury must either have disregarded the law as given in
the instructions of the court, or else have found a fact wholly contrary to the
evidence, the verdict is against law, and it is proper to grant a new trial on that
ground. Sweeney v. C. P. R. R. Co. 151.

8. Where testimony objected to and ruled out is afterwards received, the
error committed, if any, is without prejudice. Reed v. Chicago, etc., R. R.
Co. 180.

9. The court should not allow an affidavit of a juror impeaching his verdict
to be filed, except to show that it was made by lot. St. Louis, etc., R. R. Co.
v. Cantrell, 198.

10. The amount paid by the successful party for printing case on appeal he is
entitled to have taxed as an item of disbursement, in the absence of evidence
that the sum charged was fraudulently or collusively exaggerated, or more
than the usual charge at his place of residence for such services. Salter v.
Utica, etc., R. R. Co. 215.

11. Where a court has submitted a case to a jury and the jury has retired, it
does not constitute cause of reversal for the court in a proper case to recall the
jury and give it peremptory instructions to find for the defendant. McLaren v.
Indianapolis, etc., R. R. Co. 217.

12. A court can only be required to poll a jury when such jury has rendered
a verdict upon its own deliberations, and not where it was done so in open
court without deliberation. Id.

13. Where the defendant in a case demurs to the evidence, he admits all the
facts to be true which the evidence in any degree tended to prove. Indianapo-
lis, etc., R. R. Co. v. McLin, 237.

14. How party may demur to the evidence what the plaintiff admits by join-
ing in demurrer. Id.

15. Unless at first blush the damages seem excessive, the court should not dis-
turb the verdict. Id.

16. On motions for judgment non obstante veredicto, the special findings of
the jury are to be regarded as over-riding the general verdict only when both
cannot stand.

17. The court will not, in such case, presume anything in aid of the special
findings, but will make every reasonable presumption in favor of the general
verdict. No reference can be made in such case to the evidence given on the
trial. Id.

18. The order in which and the manner in which counsel address the jury are
matters within the discretion of the trial court, and do not constitute grounds
for reversal on appeal. Id.

19. A request for an instruction to the jury to the effect that it was the duty
of plaintiff (in the exercise of carefulness) to do that which the evidence tends
to show he was unable to do, was rightly refused. Faber v. St. Paul, etc., R.
R. Co. 277.

20. In passing upon a demurrer to the evidence, the court is required to make
every inference of fact in favor of the party offering the evidence which a jury
might have inferred in his favor; and if, when viewed in this light, it is suffi-
cient to support a verdict in his favor, the demurrer should be sustained. But
the court is not at liberty, in passing on such demurrer, to make inferences of
fact in favor of the defendant to countervail or overthrow either presumptions
of law or inferences of fact, in favor of the plaintiff. Frick v. St. Louis, etc.,
R. R. Co. 280.

21. Where there are two counts in an indictment and the evidence does not
fully sustain one of them, and yet the case is submitted to the jury and a general
verdict rendered, this constitutes ground for reversal for non constat, but that
the jury convicted partly or wholly on the count not sustained by the evidence.
Commonwealth v. Boston, etc., R. R. Co. 297.

22. Instructions to the jury are rendered immaterial where the jury find that
the case does not turn upon the matters discussed. Marcott v. Marquette, etc.,

R. R. Co. 306.

23. It is the province of the jury to pass upon the credibility of the witnesses;

PRACTICE-Continued.

the court will not grant a new trial when there is evidence to support the ver-
dict. Pool v. Chicago, etc., R. R. Co. 360.

24. The questions to be submitted to a jury for a special verdict should be
settled upon before the argument, and the refusal to submit a question presented
by a party after the argument is not error. Id.

25. Courts must take judicial notice of what everybody knows with regard to
the incidents of railway travel. Downey v. Hendrie, 386.

26. Where in an action for injuries alleged to have been occasioned by the de-
fendant's negligence, the jury have by their verdict found that there was such
negligence, and also that the plaintiff was free from contributory negligence, the
Court cannot set the verdict aside upon the mere preponderance of the testimony.
Evansville, etc., R. R. Co. v. Harrington, 395.

27. Mental distress of a juror, occasioned by sickness in his family, does not
disable him from sitting so as to empower the remainder of the jury to render
the verdict over the objections of either party. Houston, etc., R. R. Co. v.
Waller, 431.

28. Proper method of excepting to refusal to charge on points described.
Smedes v. Brooklyn, etc., R. R. Co. 445.

29. Where a charge is substantially right, a general exception cannot be sus-
tained. If any qualification was proper and desired, it should have been sug-
gested. Smedes v. Brooklyn, etc., R. R. Co. 445.

30. In some cases the sufficiency of the evidence to support a verdict is a
question of law, but an Appellate Court cannot be urged to examine and weigh
the evidence, and determine whether the jury was justified from the evidence in
finding the verdict. Hudson v. Chicago and N. R. Co. 464.

31. When the plaintiff's evidence giving it the most favorable construction
would not support a verdict, a nonsuit must be entered. Johnson v. Chicago
and N. W. R. Co. 471.

32. Where a bill of exceptions does not purport to give the evidence in full or
its substance, it is presumed on error that there was evidence to justify the
rulings. Wood v. Lake Shore, etc., R. R. Co. 478.

33. What defendant must be deemed to admit and waive by demurring to
the evidence. In such case Appellate Court is governed in deciding whether a
fact was admitted or not by this rule. Would the court set aside the verdict
had the jury on the evidence found the fact? If the verdict so finding the fact
would not be set aside, such fact ought to be considered as established by the
evidence demurred to. Fowler v. Baltimore, etc., R. R. Co. 480.

34. If a plaintiff by the evidence establishes a liability on the part of the defend-
ant to him, he will have a right to a recovery, and it is not error to so instruct
the jury, leaving them to find the amount of the damages from the evidence.
Chicago, etc., R. R. Co. v. Bonifield, 493.

35. An instruction is calculated to mislead, and erroneous, which sums up all
or a number of the facts the evidence tends to prove on one side, and omits all
on the other, thus impressing on the jury that the facts recited are the only ones
that are important in the case. Penn. Co. v. Stoceke, 523.

36. Where there is evidence tending to show a right of recovery in the plain-
tiff. the court should not instruct the jury, on all the evidence, to find for the
defendant. Id.

37. Proper method of taking exception to finding of facts. Mayer v. New
York Central, etc., R. Co. 531.

RECEIVERS.

1. Payments made by the receivers while operating a railroad, to connecting
roads, for freights received belonging to them, "according to a necessary usage
in the business of connecting railroads," are properly allowed to them as a credit.
Mayer v. Johnston et al. 584.

2. The appointment of a receiver to take from the defendant the possession of
his property cannot be lawfully made without notice, unless the delay required
to give such notice will result in irreparable loss. Railway Co. v. Jewett, 702.

Agreement of servant to obey all orders, rules, and regulations does not war-
rant company in assigning him to duties outside the scope of his employment.
Jones v. Lake Shore and M. S. R. Co. 500.

SIGNALS, 254, 262, 267, 273, 280, 297, 374, 431, 445, 306.

See CROSSING, 4, 6, 7, 10, 11, 14, 27; EVIDENCE, 7, 11; INDICTMENT, 2; PAS-
SENGER, 4.

SERVANTS.

SLEEPING CAR

See MASTER AND SERVANT.

A passenger, by train of a railroad company, travelling in the coach of a
sleeping car company, may properly assume, in the absence of notice to the
contrary, that the whole train is under one management, and in such case, when
he sustains injury by the negligence of one in the employ of the sleeping car
company, he may maintain an action against the railroad company. Cleveland,
etc., R. R. Co. v. Walrath, 371.

SPEED, 225, 280, 377.

See CROSSING, 16; EVIDENCE, 5; PASSENGER, 5

1. A railroad company has a right to travel over its road at pleasure, and at
such a rate of speed as it sees fit, but circumstances may make the exercise of
such right an element of negligence; great speed is not necessarily negligence,
but in connection with other facts and circumstances might tend to establish it.
Salter v. Utica, etc., R. R. Co. 437.

2. Fact that train was running at faster speed than allowed by ordinance in
approaching crossing is evidence of negligence. Faber v. St. Paul, etc., R. R.
Co. 278.

3. In an action for negligently causing death by a railroad train, held, that
aside from statutory or municipal regulation, no rate of speed is negligent per se.
Powell v. Missouri Pacific R. Co. 467.

4. Where the speed does not cause the accident, but the same is caused by the
negligence of the party, there can be no recovery. Id.

STATION.

1. A passenger has a right to remain in waiting room, and cannot be expelled
for spitting on the floor. People v. McKay, 205.

2. In an action for damages for ejection from a railroad station-house, an in-
struction to the jury "that to find for the plaintiff it must appear from the evidence
that the agent used more force than was reasonably necessary, and that by reason
of the excessive force the plaintiff was injured, and they were advised that it
was their duty to consider the resistance made by plaintiff, and the force used,
and all the circumstances, and the conduct of the parties,” held, unobjectionable.
Johnson v. Chicago, etc., R. R. Co. 206.

3. Where a person is upon the platform of a railroad station not as a passenger
or upon any business connected with the railroad company, but merely loitering
there for his own purposes or for personal enjoyment, the company owes him
no duty. Hence, if he be injured by a passing train, he cannot recover against
the company for his injuries upon the theory that they have failed to discharge
towards him a legal duty and hence have been guilty of negligence. The age
of the person injured is in such case entirely immaterial. Baltimore, efc., R.
Co. v. Schwindling, 544.

STATUTE, 1.

STREET RAILWAY.

See CONSTITUTIONAL LAW, 4.

1. A passenger attempted to mount on front platform, but found a trunk in
the way and so stood on a lower step. He rode some distance and after the car
stopped the driver told him to go to the rear platform. He started to do so, but