in discussing this question, the court says: "The carrier's obligation is to carry his passenger safely and properly, and to treat him. respectfully; and if he entrusts the performance of this duty to his servants, the law holds him responsible for the manner in which they execute the trust. . . . He must not only protect his passengers against the violence and insults of strangers and co-passengers, but, a fortiori, against the violence and insults of his own servants. If this duty to the passenger is not performed, if this protection is not furnished, but, on the contrary, the passenger is assaulted and insulted through the negligence of the carrier's servant, the carrier is necessarily responsible." In Bryant v. Rich, 106 Mass. 180, where the plaintiff, a passenger on a steamboat, was assaulted and injured by the steward and some of the table waiters, the defendant, as a common carrier, was held liable for the injury. In Croaker v. Chicago and Northwestern Ry. Co., 36 Wis. 657, where the conductor of a railroad train kissed a female passenger against her will, the court, in an elaborate opinion, held the railroad company liable for compensatory damages. It is there said: "We cannot think there is a question of the respondent's right to recover against the appellant for a tort which was a breach of the contract of carriage." In Shirley v. Billings, 8 Bush, 147, where a passenger on defendant's boat was assaulted and injured by an officer on the boat, the defendant was held liable. See, also, McKinley v. Chicago and Northwestern R. R. Co., 44 Iowa, 314, and N. O., St. L. and C. R. R. Co. v. Burke, 53 Miss. 200. Many other authorities holding the same doctrine might be cited, but we do not regard it necessary. It is true there are authorities holding the opposite view, but we do not think they declare the reason or logic of the law, and we are not prepared to follow them.

The appellant was a common carrier of passengers. As such it was not an insurer against any possible injury that a passenger might receive while on the train, but the company was bound to furnish a safe track, cars and machinery of the most approved quality, and place the trains in the hands of skilful engineers and competent managers,-the agents and servants were bound to be qualified and competent for their several employments. Again, the law required appellant, as a common carrier, to use all reasonable exertion to protect its passengers from insult or injury from fellow-passengers who might be on the train, and if the agents of appellant in charge of the train should fail to use reasonable diligence to protect its passengers from injuries from strangers while on board the train, the company would be liable. So, too, the contract which existed between appellant as a common carrier and appellee as a passenger, was a guarantee on behalf of the carrier that appellee should be protected against personal injury from the agents or servants of appellant in charge of the train. The cómpany placed these men in charge of the train. It alone had the

power of removal, and justice demands that it should be held responsible for their wrongful acts towards passengers while in charge of the train. Any other rule might place the travelling public at the mercy of any reckless employee a railroad company might see fit to employ, and we are not inclined to establish a precedent which will impair the personal security of a passenger.

We are of opinion that the evidence showed a legal cause of action in plaintiff, and the court did not err in overruling the motion to exclude the evidence from the jury. Two instructions given for the plaintiff have been somewhat criticised, but we think they were in the main correct.

The judgment will be affirmed.
Judgment affirmed.

Sections 1166 and 1167 of the Code of Tennessee, touching the liability which railroad companies incur by failing to observe certain precautions in running their trains, do not apply to contractors engaged in constructing a railroad.

The jury may be properly instructed to find for the defendant, where, if the verdict should be against him, the court should set it aside and grant a new trial.

ERROR to the Circuit Court of the United States for the Eastern District of Tennessee.

The defendants, contractors, engaged in building a railroad in Tennessee, were sued by the widow of Griggs, for herself and his minor children, for damages caused by his death. He was improperly riding on the pilot or bumper of a locomotive, forming part of a construction train of the defendants, at the time it collided with loaded cars standing on the track. The injuries he then received resulted in his death. Persons on the cars attached to the train were not hurt.

Her claim to recover was based upon sect. 1166 and sect. 1167 of the Code of Tennessee, prescribing certain precautions which a railroad company must observe in running its train. They provide that "when any person, animal, or other obstruction appears upon the road, the alarm-whistle shall be sounded, the brakes put down, and every possible means employed to stop the train and prevent an accident; and every railroad company that fails to observe these precautions, or cause them to be observed by its agents or

servants, shall be responsible for all damage to persons or property occasioned by or resulting from any accident or collision that may occur." The court charged the jury that these provisions did not apply to the case, and that she was not entitled to recover. The jury found for the defendants, and she sued out this writ.

Submitted on printed arguments by Mr. J. M. Thornburgh for the plaintiff in error, and by Mr. Xenophon Wheeler for the defendants in error.

Mr. Chief Justice WAITE delivered the opinion of the court.

We agree entirely with the court below in the opinion that the statutes in relation to railroads relied upon by the plaintiff in error are not applicable to the facts of this case. If upon the evidence the jury had brought in a verdict against the defendants it would have been the duty of the court to set it aside and grant a new trial. The case comes clearly within R. R. Co. v. Jones (95 U. S. 439), which was followed below. It was right, therefore, to direct a verdict for the defendants. There was no such conflict of evidence as to make it necessary for the jury to pass on the facts. Judgment affirmed.

POOL
v.

CHICAGO, M. AND ST. P. RY. Co.

(Advance Case, Wisconsin. November 21, 1882.)

Plaintiff, who had at times been employed as a detective by the defendant railway company, was directed by its authorized agent to come at once from P. to K., (places on the road,) and on going to the station at P. for the purpose of responding to the call, found there upon the track of the company a hand-car ready for his reception, and upon which he was requested to make the journey. Held,

(1) In the absence of any evidence tending to show the contrary, it will be presumed that the hand-car was furnished and tendered to him by an authorized agent of the company.

(2) The company was bound to have its road in a reasonably-safe condition for the safe transportation of the plaintiff on such hand-car, and in such position thereon as he should take under the direction of the person in charge

thereof.

The question of negligence is generally a mixed question of law and fact, and will not be taken from the jury except in very clear cases.

It having been decided-53 Wis. 657-that the allegations of the complaint, that the plaintiff sat upon the hind end of the hand-car with his feet hanging down, under the direction of the person in charge of the car, and without being aware of the danger of the position, did not show negligence on his part contributing to an injury caused by plank placed on the defendant's road between the rails being loose, warped, and sticking up, so as to hit

his heels, additional facts, brought out by the evidence on the trial, in regard to the dimensions of the car, the height of the platform on which the plaintiff sat above the road-bed, and the danger which he would be in from the handle of the lever with which the car was worked, are held not to be sufficient to justify the court in taking the question of negligence from the jury. It is the province of the jury to pass upon the credibility of the witnesses, and upon the consideration and weight which shall be given to the testimony, and when they have passed upon it and the trial court refuses to grant a new trial, upon the ground that the verdict is against the clear preponderance of the evidence, this court will not reverse the judgment on that ground when there is any evidence to support it.

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, especially where the same question has been submitted in a more general form.

APPEAL from circuit, Sauk County.

J. W. Lusk, for respondent, P. Pool. J. W. & M. R. Cary and D. S. Wegg, for appellant, Chicago, Milwaukee and St. Paul Ry.

Co.

TAYLOR, J.-This case was before the court on an appeal from an order overruling a demurrer to the plaintiff's complaint, and upon such appeal it was held the complaint stated a cause of action. 53 Wis. 657; [S. C. 3 Am. and Eng. R. R. Cas. 332.] The cause was committed, and the defendant demurred. A trial was had upon the merits, and a verdict rendered in favor of the plaintiff, upon which judgment was entered, and the defendant again appeals. In order to fully understand what was determined by this court on the former appeal, it is necessary that the material parts of the complaint be stated. The complaint, after alleging that the defendant is an incorporated railway company, and a common carrier of passengers, and that one of its lines of road is in Sauk County, in this State, and stating the residence of the plaintiff at and previous to the accident, proceeds as follows:

"That said plaintiff agreed to go and consented to be by said defendant transported from Portage City to Kilbourn City aforesaid; that it thereupon became. the duty of said defendant to carry said plaintiff to Kilbourn City aforesaid safely and in a safe conveyance on its road or track, and to not unnecessarily expose the life and limbs of the said plaintiff to danger or permanent injury; that the said defendant, disregarding its said duty in the premises, instead of providing said plaintiff a suitable car and engine for the purpose of said transportation, or some other suitable conveyance, brought up to the depot at Portage City aforesaid the ordinary hand-car used by section men in working on the track of the said defendant, and directed the said plaintiff to ride thereon; that said plaintiff trusted in the defendant, its agents and servants, and supposed and believed at the time that he, the said plaintiff, might be safely transported to Kilbourn City on said car; that the track and road

bed was suitable for that purpose, and safe, or at least reasonably so, and that said car would be by the defendant, its agents and servants, properly run and managed; and the said plaintiff was wholly unaware of danger, and was not at any time herein mentioned guilty of any carelessness, or in any manner negligent; that said plaintiff thereupon got upon said car, and was directed by the defendant, its agents and servants, where to sit or stand. At the end of the section the said defendant, its agents and servants, transferred said plaintiff to another like car, in charge of other men, also agents and employees of said defendant. Again, at the end of the section, and when within about one mile of Lewiston station, on the defendant's road, between Portage City and Kilbourn City, said plaintiff was transferred to another hand-car run and managed by the agents and servants of said defendant, acting for and in the place of said defendant; that the person in charge of said last-mentioned car directed the plaintiff to take his seat on the hind end of said car and let his legs and feet hang over and off the hind end, and directed otherwise the said plaintiff just how and where to sit; and the said plaintiff, believing, trusting, and relying upon said defendant, its agents and servants as aforesaid, did as directed.

"That thereupon said defendant, its agents and servants, propelled and ran said car, carrying said plaintiff as aforesaid; and the plaintiff charges that the said agents and servants, acting for and in the place of said defendant, ran and propelled said car at an unnecessarily fast, careless, and dangerous rate of speed, and that the said plaintiff was at the time, by the express directions of said defendant, its agents and servants, seated upon said car in a dangerous and unnecessarily hazardous position, considering the speed at which the said car was being propelled as aforesaid; that when about 80 rods west of Lewiston station aforesaid on said road, and where the same crosses a highway, the heels of said plaintiff, so hanging over the hind end of said car as aforesaid, struck against the ends of some plank that had been carelessly and negligently placed upon said crossing, and between the iron rails of the defendant's track, by the defendant, its agents and servants. The ends of said plank instead of lying straight and flat, level with the grade, were loose, warped, and sticking up above where they ought to have been from four to six inches, just high enough to hit the plaintiff's heels sitting as aforesaid; that said plaintiff was thereby thrown with great force and violence backwards, and under the lever and lever handle by which the car was propelled, said lever and handles striking the plaintiff with great force and violence on the back of the neck and shoulders, doubling up the said plaintiff, and greatly and seriously injuring the said plaintiff permanently and for life." The remainder of the complaint sets forth the plaintiff's injuries and damages, and demands judgment.

Upon the former appeal it was argued by the learned counsel for