ity of the railroad company for injury to a passenger travelling on one of its trains in a coach of a sleeping car company; secondly, as to the presumption arising from proof of the injury.

1. In Southern Express Co. v. Ry. Co., 10 Fed. Rep. 210, Miller, J., said that "the express business is a branch of the carrying trade that has, by the necessities of commerce and the usages of those engaged in transportation, become known and recognized;" "that it is the duty of every railroad company to provide such conveyances, by special cars or otherwise, attached to their freight or passenger trains as are required for the safe and proper transportation of this express matter on their roads;" "that under these circumstances there does not exist, on the part of the railroad company, the right to open and inspect all packages so carried;" and "that, when matter is so confided to the charge of an agent or messenger [of the express company,] the railroad company is no longer liable to all the obligations of a common carrier, but that, when loss or injury occurs, the liability depends upon the exercise of due care, skill and diligence on the part of the railroad company." And see Penn. Co. v. Woodworth, 26 Ohio St. 585.

Counsel for plaintiff in error argue in this case that sleeping cars have become recognized as so far necessary to the comfort and convenience of passengers by railway, that railway companies may be compelled, in like manner, to attach the coaches of sleeping-car companies to their trains, where they have failed to provide their own cars for such purpose, in which case there should be a corresponding modification of the liability of the railroad company, and that whether the arrangement between the companies be enforced or conventional, the railroad company should not be liable for injury to passengers resulting solely from negligence of the agents of the sleeping-car company.

In support of this view, attention is called to the fact that in Penn. Co. v. Roy, 102 U. S. 451, 1 Am. and Eng. R. R. Cas. 225, where the liability of the railroad company for an injury received in a car of the Pullman Palace Car Co. was asserted, Harlan, J., lays stress on the fact that the railroad company had published and circulated cards which were in such form as to induce the belief that the sleeping car was under the management and control of the railway company. But, on examination of the whole opinion, we find there was no intention to place the liability on such narrow ground; and we have no hesitancy in saying that, in the absence of notice that the company will not be liable for defective appliances in the sleeping car or negligence of servants of the sleeping-car company, a passenger may well assume that the whole train is under one general management. Thorpe v. Railway Co., 76 N. Y. 402. How far a railway company may, by agreement with a sleeping-car company, known to the passenger, exonerate

itself from liability for such injuries, is a question concerning which we express no opinion.

2. As to the presumption stated in the charge. Counsel for plaintiff in error say that there was no evidence that the injury resulted from defect in the car or any part of it. Hence the injury was occasioned by the negligence of the porter in securing the berth in its place or by the interference of some other person with the fastenings of the berth. This statement is probably correct. Now in charging that the burden was on Walrath to show the injury resulted from the negligence of the defendant below, and that he could only recover for negligence traceable to the defendant's fault, the court virtually charged that he was required to show that he was without fault. This being shown, we think the court might then well say, under the circumstances, that the negligence of the defendant might be presumed. We are aware that upon this subject the authorities are in some conflict. Roscoe's N. P. Ev. (14th ed.) 695; Thompson on Car. Pas. 209; Schouler on Bailments, 642; 2 Wait's Act and Def. 90; Pierce on Rail. (ed. of 1881) 298; Johnson v. R. R. Co., 20 N. Y. 65; Readhead v. Midland Ry. Co., 4 L. R. Q. B. 379; Hyman v. Nyle, 6 Q. B. D. 685; Great West. Ry. v. Fawcett, 1 Moore (P. C.), 101, 116; cf. Czech v. General Steam Nav. Co., 3 L. R. C. P. 14. But the general question was carefully considered in R. R. Co. v. Mowery, 36 Ohio St. 418, 3 Am. and Eng. R. R. Cas. 361, and we think the principle of that case sustains the court below in the charge given and in refusing the charge requested. R. R. Co. v. McMillan, 37 Ohio St. 554., was an action for killing a horse on the company's road, and has no application. Whether the sentence next to the last in the portion of the charge set forth in the statement of this case was not more favorable to the railroad company than was warranted, we need not determine.

Judgment affirmed.

See Penn. Co. v. Roy, 1 Am. and Eng. R. R. Cas. 225.

MORSE

v.

DUNCAN.

(U. S. Circuit Court, S. D. Mississippi. Nov. 29, 1882.)

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.

In the absence of gross negligence, recklessness, wilfulness, malice, insult, or inhumanity, actual damages can only be allowed.

No recovery can be allowed for inconvenience or even physical hardship when the same are voluntarily undertaken.

The general rule is "that pain of mind is only the subject of damages when connected with bodily injury; it must be so connected in order to include it in the estimate, unless the injury is accompanied by circumstances of malice, insult, or inhumanity."

W. G. GRACE, solicitor for the Petitioner.

E. L. Russell and B. B. Boone, solicitors for the Respondent. 1. The general rule is that he who alleges negligence as the basis of a claim for damages is bound to prove the fact alleged, and the extent of the injury.

The damages for negligence are to be measured by the same rule to artificial persons as to natural persons. 70 Penn. St. 119.

2. The evidence of the conductor and engineer that the signal -a red light-was not seen and intentionally disregarded is entitled to great weight from the fact that the signal was one of danger, and the instinct of self-preservation, if not a sense of duty, would have caused them to stop. Even in the absence of their direct testimony on this point the fact that the red light was not seen could be inferred from this circumstance. Oldfield v. New York, etc., R. R. Co., 14 N. Y. 310; Shear. and Redf. on Negligence, sections 43 and 44.

3. Petitioner cannot recover for anything that is done by him without compulsion from the respondent and the doing of which is voluntarily assumed by him. Francis v. St. Louis Transfer Company, 5 Mo. Ap. 7; Trigg v. St. L., K. C. and N. R. R. Co., 6 American and English Railroad Cases, 349; 2 Redf. on Railways (5th ed. 262); Damont v. New Orleans and Carrollton R. R. Co., 9 La. Ann. 441.

4. In no case can vindictive or exemplary damages be recovered unless there is wilfulness, wantonness, malice, or a reckless disregard of plaintiff's rights. C., St. L. and N. O. R. R. Co. v. Scurr, 6 American and English R. R. Cases, 341; Trigg v. Kansas City and N. R. R. Co., 6 American and English R. R. Cases, 345; Moody v. McDonald, 4 Cal. 297; St. Peter's Church v. Beach, 26 Conn. 355; Williams v. Real, 20 Ill. 147; Allison v. Chandler, 11 Mich. 542; Goetz v. Ambs., 27 Mo. 28; Heil v. Glanding, 42 Penn. St. 493; Selden ». Cushman, 20 Cal. 56; Blodgett v. Brattleboro, 30 Vermont, 579; Snow v. Grace, 25 Ark. 570; Amiable Nancey, 3 Wheaton, 546; Seymour v. R. R. Co., 3 Bissell, 43; Lienkauff and Strauss v. Morris, 66 Ala. 406; 11 La. Ann. 292; Tripp v. Grouner, 60 Ill. 474; Hamilton v. Third Ave. R. R. Co., 53 N. Y. 25.

HILL, D. J.-—This is a petition claiming damages of the defendant for the alleged default of the defendant's employees in neglecting to stop defendant's passenger trains at Marion, a flag station on the Mobile and Ohio R. R., of which defendant is receiver, to take

petitioner on board said trains and transport him to Scooba on said road.

The proof shows that the petitioner went to the station at Marion on the morning of December 29th, 1881, to take the train for Scooba; that the train passed the usual place of stopping to put off and take on passengers, and that after remaining some four or five minutes passed on; that before stopping the whistle was blown to give notice of the coming of the train and of the intention to stop; that passing the usual place of stopping was for the purpose of transferring a lady and her children with their baggage from the train to a freight train to be returned to Meridian, where she had gotten on the train by mistake; that not being flagged or having any notice that any one wished to get on the train at that place, the train passed on. There is no allegation in the petition or any proof that the train was flagged that morning. The petitioner was advised by an employee of the post-master that the train would back down to the usual place of stopping, and he did not attempt to get on the train and was left. This was a misfortune to the petitioner, but without fault on the part of the conductor or other employees of the defendant; hence no recovery can be had for this misfortune. The proof of the petitioner and another young man who designed to take the train on the same morning, as well as by the employee of the post-master, who took the mail to the train and received it, and who was in the habit of giving signals for the stoppage of the trains, is that on the 30th instant he did flag the train for the purpose of stopping it to enable the petitioner and the other witness to get on the train, and it passed on without stopping. The conductor and the engineer in charge of the train testify that their uniform custom is to look for the signal at that place, and that none was given that morning. I presume that the witnesses on the behalf of the petitioner testify truly and that the signal was given, and must believe that the defendant's witnesses testify truly in stating that they did not see the signal, and can only reconcile the conflict by holding that they were mistaken in their opinion that they noticed or looked for the signal sufficiently to discover it and which it was their duty to have done.

Under these circumstances petitioner is only entitled to the actual pecuniary damages he has shown he sustained by reason of his failure to get upon the train that morning. He alleges, but does not prove, that he had to procure a private conveyance and go with his trunk to Meridian to get on the train; he does not prove that he paid anything for this conveyance, but, presuming that he did and had to pay for his night's lodging and for supper, five dollars would cover the amount, including loss of time; he further proves that when he arrived at Scooba the conveyance which was there the day before had left, and that he had to walk through the mud a distance of twelve miles and procure a wagon next day and return

for his trunk, for which his brother-in-law charged him two dollars and a half, which was certainly a full price for a brother-in-law; but, if he had chosen so to do, he could doubtless have procured a conveyance from Scooba for five dollars that would have taken both himself and trunk home the day he arrived, and saved himself that muddy walk. Inasmuch as this muddy walk was undertaken voluntarily by the petitioner no compensation can be allowed him therefor. Francis v. St. Louis Transfer Co., 5 Ap. 7; Trigg v. St. Louis, K. C. and N. R. R. Co., 6 American and English R. R. Cases, 349.

So that five dollars at this end of the line will be full compensation, unless we consider the "extreme anguish of mind" he endured; if he is not more fortunate than most men he will meet many as severe in life without a thought of compensation.

The general rule is "that pain of mind is only the subject of damages when connected with bodily injury; it must be so connected in order to include it in the estimate, unless the injury is accompanied by circumstances of malice, insult, or inhumanity." Pierce on Railroads, ed. 1881, 362; I. B. and W. Ry. Co. v. Birney, 71 Ill. 391; P. P. Car Co. v. Barker, 7 Col. 377; Francis v. St. Louis Transfer Co., 5 Mo. Ap. 7.

Had the engineer or conductor seen the signal and disregarded it then punitive damages might have been awarded; but as the signal used was one of danger-a red light-it is not to be presumed either of them saw it and disregarded it, so that its non-observance was more an accident than otherwise, for which as already stated none but actual damages can be awarded. Nelson v. A. and P. R. R. Co., 68 Mo. 593; 2 Redf. on Railways, 5th ed. 262; Milwaukee R. R. Co. v. Arms, 91 U. S. 489; C., St. L. and N. O. R. R. Co. v. Scurr, 6 Am. and Eng. R. R. Cas. 341. The receiver will pay the petitioner the sum of ten dollars, and as there is no proof that this sum was tendered, will also pay the costs of this proceeding.

THE CLEVELAND, COLUMBUS, CINCINNATI AND INDIANAPOLIS
Ry. Co.

On trial of an action against a railroad company for injuries to the plaintiff, 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 undertaking to define a safe rate of speed by its comparison with the velocity "practised before, with the tacit consent of the community, and without accident," assumed a false criterion, and was erroneous.