that the engineer, in order to avoid injury to the plaintiff, stopped his engine, and sounded the whistle. All the evidence shows that, after the plaintiff was thrown from his buggy, the engineer and fireman went to his assistance. No act or expression is called to our attention indicating any malicious or mischievous purposes in the mind of the engineer. The case therefore stood before the jury on proof tending to show negligence and carelessness on the part of the engineer in the discharge of his duties.

The points decided are stated in the syllabus.
Opinion by ALLEN, J.

OLDS v. NEW YORK, NEW HAVEN AND
HARTFORD RAILROAD COMPANY.

Supreme Judicial Court, Massachusetts, October, 1898.

PASSENGER ON MIXED TRAIN INJURED.

A passenger who rides on a mixed train of freight and passenger cars, the only regular train run on a branch road, with the business of which he is well acquainted, must be presumed to have assumed the additional dangers incident thereto.

REPORT from Superior Court.

PARKER F. MARTIN, for plaintiff.

DANA MALONE, for defendant.

KNOWLTON, J. This is an action to recover damages for an injury received by the plaintiff while riding in a car of the defendant corporation. The case was tried without a jury. The judge found that the jerking and jolting were "greater and more severe than would occur on an ordinary passenger train running under due care, and ruled that if the liability in respect to preventing injury by jolting and jerking and stopping suddenly is the same, and if the obligations are the same in all these respects, on a freight or mixed train, such as this train was, as on an ordinary passenger train, the plaintiff is entitled to recover; but, if the defendant was not liable for such jolting and jerking as was ordinarily incident to a train of this kind, the plaintiff was not entitled to recover." By agreement of the parties, the case was reported to this court. If the ruling was correct, judgment is to be entered for the defendant; if incorrect, for the plaintiff. It must be assumed that on the findings of fact this is the only disputed proposition of law which was considered at the trial.

* * *

The accident occurred on a branch line of the defendant's rail

road, about ten miles in length, extending from South Deerfield to Turner's Falls, in the town of Montague. The trains running on this branch of the railroad are usually made up of freight cars and a car known as a "combination car," one part of which is fitted with seats for the conveyance of passengers, and another part is adapted to carrying baggage. It is reasonably to be inferred that there is not sufficient business over this part of the railroad to warrant the running of trains for carrying passengers only. If under these circumstances the defendant was legally bound to provide for the plaintiff, at the place of the accident, a train made up of passenger cars only, or to conduct its business in such a way as to start and stop its trains with no more jerking or jolting than is common in running ordinary passenger trains, the defendant is liable; otherwise it is not. The nature of the defendant's business on this line, and the mode of conducting it, were well known to the plaintiff, and he must be assumed to have made his contract for carriage in reference to existing conditions. It is obvious that common carriers must adapt their vehicles and methods to the business to be done. There is every kind of business to be provided for in different places, from the carrying of thousands of tons of freight and tens of thousands of passengers per day over a single line, to the maintenance of lines over which only an occasional passenger will pass and a few small articles of merchandise be carried. In some places long passenger trains, with the best possible equipment for safety and comfort, are reasonably required; in others a single horse and a cheap wagon are all that can be maintained from the income of the business for which provision is to be made, and all that reasonably can be expected. It is the duty of a carrier of passengers to exercise "the utmost care consistent with the nature of his undertaking, and with due regard for all the other matters which ought to be considered in conducting the business." Dodge v. Steamship Co., 148 Mass. 207-218, 19 N. E. Rep. 373. If the business of a given line is the running of trains for freight with a car attached for passengers, the care required is such as ought to be exercised in running such trains. The law is clearly expressed in Railroad Co. v. Arnol, 144 Ill. 261, 33 N. E. Rep. 204, as follows: "Persons taking passage upon freight trains, or in a caboose or car attached to a freight train, cannot expect or require the conveniences and all of the safeguards against danger that they may demand upon trains devoted to passenger service, and are accordingly held to have accepted the conditions provided by the company, subject to all of the ordinary inconveniences and delays and hazards incident to such trains, when made up and equipped in the ordinary manner of

making and equipping such trains, and managed with proper care and skill. * * * But, if a railway company consents to carry passengers for hire by such trains, the general rule of its responsibili ties for their safe carriage is not otherwise relaxed. From the composition of such a train, and the appliances necessarily used in its efficient operation, there cannot, in the nature of things, be the same immunity from peril in traveling by freight trains as there is by passenger trains; but the same degree of care can be exercised in the operation of each. The result in respect of the safety of the passenger may be wholly different because of the inherent hazards incident to the operation of one train, and not to the other; and it is these hazards the passenger assumes in taking a freight train, and not hazards or peril arising from the negligence or want of proper care of those in charge of it." Principles decisive of the present case are stated in Le Barron v. Ferry Co., 11 Allen, 312, and in Heyward v. Railroad Co., 169 Mass. 466, 48 N. E. Rep. 773also, Dodge v. Steamship Co., 148 Mass. 207-218, 19 N. E. Rep. 373: Railroad Co. v. Axley, 47 Ill. App. 307; Dunn v. Railway Co., 58 Me. 187-197; Lusby v. Railway Co., 41 Fed. Rep. 181-184; Railroad Co. v. Dickerson, 59 Ind. 317.

The plaintiff in the present case well understood the kind of business in which the defendant was engaged, and the manner in which the business was conducted. So far as there were dangers naturally incident to the running of freight cars and a passenger car in the same train, the parties must be presumed to have contracted in reference to them, and the plaintiff to have assumed them. We have no occasion to consider the additional fact that the plaintiff was injured on a part of the railroad which was designed exclusively for freight traffic, beyond the terminus of the line intended for passengers also. There are additional reasons for holding that when the plaintiff went beyond the passenger station over a portion of the freight tracks, where he and other passengers were permitted to ride for their convenience as a favor, he assumed all the risks incident to the ordinary management of a freight train in that place. Judgment on the finding.

MCISAAC v. NORTHAMPTON ELECTRIC
LIGHTING COMPANY.

Supreme Judicial Court, Massachusetts, October, 1898.

LINEMAN INJURED BY FALL OF ELECTRIC LIGHT POLE THAT WAS DECAYED BELOW THE SURFACE OF THE GROUND. — A lineman injured by the fall of an electric light pole upon which he was at work and that was decayed beneath the surface of the ground, will be presumed to have assumed the risk of its breaking when the pole was obviously of uncertain age and the lineman failed by inspection to ascertain whether it was strong enough to sustain him before going on it.

EXCEPTIONS from the Superior Court, Hampden County. A judg ment was rendered for defendant and plaintiff brings exceptions. CARROLL, MCCLINTOCK & STAPLETON, JR., for plaintiff.

WM. G. BASSETT, for defendant.

KNOWLTON, J.-The plaintiff was employed by the defendant as a lineman, and was injured by the breaking and falling of a pole on which the defendant's wires were suspended. The pole was about forty feet in length, was set in the ground about five feet, and was about thirty-five feet high. The undisputed evidence tended to show that it was badly decayed a few inches below the surface of the ground, so that it broke off square with the strain upon it resulting from the plaintiff's weight and the force from wires drawing upon it after other wires had been removed, which probably had previously tended to counteract the strain from those that remained. The plaintiff contends that the defendant was guilty of negligence in failing to ascertain whether the pole was sound and strong, or to take other precautions for his safety.

The plaintiff was directed to go and take down from the pole the two wires upon it which belonged to the defendant, and to put them on a new pole near by, which had been erected on account of a change of grade in a railroad at a crossing. He went alone to do the work, using a horse and wagon belonging to the defendant to carry such tools and materials as he thought he needed. He was a man of experience in this kind of business, and the method of doing the work he seems to have determined for himself. The pole was of chestnut wood, about eight inches in diameter at the top, and about fourteen inches at the surface of the ground. It had been set between eight and nine years, and the evidence tended to prove that it showed no weakness or sign of decay above the ground.

A fundamental question is whether the defendant owed to a line

man whose business it was to work upon poles all along the line, as occasion might require, the duty to inspect its poles below the ground, and inform the lineman whenever any of them was so decayed as to be unsafe to work upon. The plaintiff admitted in his testimony that he knew that the life of a pole was limited, and that any pole after a time would become unsafe. He had worked upon poles in the construction and repair of electric lines many years. When he engaged to work for the defendant he knew it would be his duty to go upon poles that had been set in the ground an uncertain length of time. He must have known that the work of climbing poles and taking down and putting up wires would often put a strain upon a pole much greater than it would be exposed to in sustaining wires when they were all in their proper positions. He must have known that it would be inexpedient and impracticable to have a man or company of men to go and examine each polę upon which a lineman was about to work, to see whether it would sustain the strain which the work would put upon it. The evidence was undisputed that it was easy to determine very quickly whether a pole was badly decayed a little below the surface of the ground, and that no skill or experience was required to do it beyond that which was possessed by ordinary linemen. The plaintiff testified that there were risks about the business with which he was familiar as a lineman. We think that one of the most common and obvious of these, in reference to which both he and his employer must have been presumed to have contracted when he entered the defendant's service, was the risk that some pole of uncertain age might break and fall when a lineman was working upon it, if he did not take measures to ascertain its condition before going upon it. All the evidence tends to show that, in the ordinary course of the business, the linemen, who are often expected to work alone without supervision, as the plaintiff was working at the time of the accident, would examine the poles for themselves, so far as they considered it necessary to do so for their safety. They easily could make any necessary tests to ascertain the condition of the poles as to soundness, without the aid of special inspectors, and from their knowledge of common affairs could judge whether the pole was safe to go upon. The plaintiff testified that there were pike poles belonging to the defendant at the shed from which he started with the horse and wagon, and that he was familiar with the use of pike poles in setting new poles and bracing up old ones, and there is nothing to show that he might not have taken some of them to use in the work if he had chosen to.

The burden was upon him to show that the defendant's neglect