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of this opinion that the awful character of the impending danger, the imminency of loss of life, itself shaded the general rule, or rather was to be taken into account by the jury favorably to the plaintiff in determining what a man of ordinary care and prudence would have then and there done.

There was evidence in the case tending to show that Reevers saved a part of his wages after paying the living expenses of himself and those dependent upon him. It would therefore have been error for the court to limit 63 the recovery to the amount he would have contributed to the support of his dependent next of kin.

The testimony of the witness, John White, that "at the time the bratticing was begun the fire must have been on the slope and air course," was obviously a mere conclusion of the witness, and was properly excluded, as was also the statement of the witness McCall, "I am satisfied the return air course was on fire," and the proposed testimony of the witness Johns that "at the time he bratticed up the mine there was nothing he could have done to save the men," and "that it was not practicable to put out the fire except by bratticing up the mines with the appliances we had." These statements of Johns covered, indeed, the very issues which the jury were trying.

It was in evidence that Reevers was a strong, healthy, sober, and industrious young man, a regular worker and an experienced miner. In determining his earning capacity the defendant could not have been prejudiced by the evidence that an average miner, "in good health and strength and industry, could dig from five to nine tons of coal a day at those mines at that time." If there is any inaptness in the comparison, it is unfavorable to the plaintiff.

The fact that before the fire there had been a pipe line extending from the mine to Cahaba river, a distance of a mile and a half, tended to show the feasibility of getting water through that line if it still existed, or through a line to be relaid there if it had been taken up, in time to extinguish the fire in that way while the intestate still survived; and evidence was properly received of the fact.

The testimony of Duncan as to the inspection he had made, etc., was competent under counts then in the case.

The judgment must be affirmed.

NEGLIGENCE.-A GENERAL ALLEGATION of negligence is good against demurrer, but on motion the pleader may be required to specifically state in what the negligence consisted: Fremont etc.

R. R. Co. v. Harlin, 50 Neb. 698, 61 Am. St. Rep. 578. See, too, Snyder v. Wheeling Electrical Co., 43 W. Va. 661, 64 Am. St. Rep. 922; Omaha etc. R. R. Co. v. Crow, 54 Neb. 747, 69 Am. St. Rep. 741. NEGLIGENCE.-THE DEGREE OF CARE required in order to avoid liability for negligence must be proportioned to the nature of the act performed, the place where performed, and the extent of danger and injury likely to result from a failure to use due care: Houston etc. Ry. Co. v. Boozer, 70 Tex. 530, 8 Am. St. Rep. 615. More care must be used where there is greater danger: Galveston etc. Ry. Co. v. Gormley, 91 Tex. 393, 66 Am. St. Rep. 894. In the management of agencies which may cause death or serious injury, the utmost care is required: Perham v. Portland Electric Co., 33 Or. 451, 72 Am. St. Rep. 730.

NEGLIGENCE-DUTY OF PERSON IN PERIL.-When a person is placed in peril through the negligence of another, he need make only an effort to protect himself, and if he errs in judgment in seeking safety, he cannot be said to be guilty of negligence: Blackwell v. Lynchburg etc. R. R. Co., 111 N. C. 152, 32 Am. St. Rep. 786. See, too, Consolidated Traction Co. v. Scott, 58 N. J. L. 682, 55 Am. St. Rep. 620.

DEATH BY WRONGFUL ACT.-THE MEASURE OF DAMAGES for negligently causing the death of a human being is treated in the monographic note to Louisville etc. Ry. Co. v. Goodykoontz, 12 Am. St. Rep. 375-383. The standard for the measurement of damages is the pecuniary value of the life of the person killed to the beneficiaries: Missouri Pac. Ry. Co. v. Moffatt, 60 Kan. 113, 72 Am. St Rep. 343.


SERVANT-VICE-PRINCIPAL.-A servant, agent, or employé, while performing a duty required of the master, becomes a vice-principal, for whose negligence the master is liable: See the extended note to Mast v. Kern, 75 Am. St. Rep. 591, on viceprincipals.

MASTER AND SERVANT.-THE SUPERINTENDENT of mine, having general and entire charge of the work, is a representative of the master, and the master is liable for the superintendent's neglect of duty: See the extended note to Mast v. Kern, 75 Am. St. Rep. 626.

INSTRUCTIONS ASSUMING FACTS.-When there is no conflict in the evidence, the court in instructing the jury may assume it to be true: Bynon v. State, 117 Ala. 80, 67 Am. St. Rep. 163.

Diligence Required When Human Life is Involved.

The rule announced in the principal case, that where human life is at stake due care and diligence require everything to be done that gives reasonable promise of the preservation of such life, regardless of difficulties or expense, finds support in the rule universally applied to common carriers of passengers that they are bound to use the utmost care and diligence for the safety of passengers, and are liable for an injury to a passenger occasioned by the slightest neglect against which human prudence and foresight might have guarded. This rule has been applied against common carriers of passengers by rail ever since the invention and operation of steam railroads and its announcement may be found in the following cases: Evansville etc. R. R. Co. v. Athon, 6 Ind. App. 295, 51 Am. St. Rep. 303; West Chicago etc. R. R. Co. v. Johnson, 180

Ill. 285; McCurrie v. Southern Pac. Co., 122 Cal. 558; International etc. Ry. Co. v. Welch, 86 Tex. 203, 40 Am. St. Rep. 829; Louisville etc. R. R. Co. v. Minogue, 90 Ky. 369, 29 Am. St. Rep. 378; Alabama etc. R. R. Co. v. Hill, 93 Ala. 514, 30 Am. St. Rep. 65; Chicago etc. R. R. Co. v. Pillsbury, 123 Ill. 9, 5 Am. St. Rep. 483; Deyo v. New York Cent. R. R. Co., 34 N. Y. 9, 89 Am. Dec. 418; Johnson v. Winona etc. R. R. Co., 11 Minn. 296, 88 Am. Dec. 83; Baltimore etc. R. R. Co. v. Worthington, 21 Md. 275, 83 Am. Dec. 578; State v. Baltimore etc. R. R. Co., 24 Md. 84, 87 Am. Dec. 600; Gillenwater v. Madison etc. R. R. Co., 5 Ind. 339, 61 Am. Dec. 101; Pennsylvania Co. v. Roy, 102 U. S. 451; Railway Co. v. Sweet, 60 Ark. 550; Chicago etc. R. R. Co. v. Landauer, 39 Neb. 803. The rule is applied to carriers of passengers by freight train as well as passenger train: Indianapolis etc. R. R. Co. v. Horst, 93 U. S. 291. And as well to carriers by water as by rail: Steamboat New World v. King, 16 How. 469; Morrissey v. Wiggins Ferry Co., 43 Mo. 380, 97 Am. Dec. 402. The rule also applies with equal force to carriers of passengers by stagecoach, or other vehicles: Farish v. Reigle, 11 Gratt. 697, 62 Am. Dec. 666; Tuller v. Talbot, 23 Ill. 357, 76 Am. Dec. 695.

A carrier's duty is not ended with carrying his passenger safely from one point to another, but he must set the passenger down safely, if, in the exercise of the utmost care, it can be done: Evansville etc. R. R. Co. v. Athon, 6 Ind. App. 295, 51 Am. St. Rep. 303. A prima facie case is established when the plaintiff shows that he was injured while being carried as a passenger by the defendant, and that the injury was caused by the act of the latter acting as a common carrier, and in operating the instrumentalities employed in his business: McCurrie v. Southern Pac. Co., 122 Cal. 558. In Pennsylvania Co. v. Roy, 102 U. S. 456, Mr. Justice Harlan, in delivering the opinion of the court, and speaking of the rule under consideration, said: "The carrier is required, as to passengers, to observe the utmost caution characteristic of very careful, prudent men. He is responsible for injuries received by passengers in the course of their transportation which might have been avoided or guarded against by the exercise upon his part of extraordinary vigilance, aided by the highest skill. And this caution and vigilance must necessarily be extended to all the agencies or means employed by the carrier in the transportation of the passenger. Among the duties resting upon him is the important one of providing cars or vehicles adequate, that is, sufficiently secure as to strength and other requisites, for the safe conveyance of the passengers. That duty the law enforces with great strictness. For the slightest negligence or fault in this regard, from which injury results to the passenger, the carrier is liable in damages. These doctrines, to which the courts, with few exceptions, have given a firm and steady support, and which it is neither wise nor just to disturb or question, would, however, lose

much, if not all, of their practical value, if carriers were permitted to escape responsibility upon the ground that the cars or vehicles used by them and from whose insufficiency injury has resulted to the passenger, belong to others": Pennsylvania Co. v. Roy, 102 U. S. 451-456.

The rule above announced applies to street-car companies, no matter what their motive power. Thus, in Topeka City Ry. Co. v. Higgs, 38 Kan. 375, 5 Am. St. Rep. 754, it was decided that street railway companies, as carriers of passengers, are bound to exercise all possible skill, foresight, and care in running their cars, so that passengers may not be exposed to danger on account of the manner in which the cars are run, and such skill and care include the exercise of every reasonable precaution to prevent injury to passengers, and imply that there shall be good tracks, safe cars, careful management, and judicious operation in every respect. All possible foresight means more than this; it means anticipation, if not knowledge, that the operation of street-cars will result in danger to passengers, and that there must be some action with reference to the future, a provident care to guard against such occurrences, a wise foresight and prudent provision that will avert the threatened evil, if human thought or action can do so. Such companies are liable for the slightest negligence, which is usually presumed from the happening of an accident. To the same effect: Spellman v. Lincoln Rapid Transit Co., 36 Neb. 890, 38 Am. St. Rep. 753; Pray v. Omaha St. Ry. Co., 44 Neb. 167, 48 Am. St. Rep. 717; Lincoln St. Ry. Co. v. McClellan, 54 Neb. 672, 69 Am. St. Rep. 736; Citizens' St. R. R. Co. v. Merl, 134 Ind. 609; Reynolds v. Richmond etc. Ry. Co., 92 Va. 400; West Chicago St. R. R. Co. v. Johnson, 180 Ill. 285; North Chicago St. Ry. Co. v. Cotton, 140 Ill. 486. This doctrine does not apply to trespassers or licensees upon a railroad track. As to them, the railroad company owes no duty until their discovery upon the track, and then need exercise only reasonable care to prevent injuring them, and is liable only when injury is wantonly or willfully inflicted: Barney v. Hannibal etc. R. B. Co., 126 Mo. 372; Earl v. Chicago etc. Ry. Co., 109 Iowa, 14, post, p. 516, and note; Purcell v. Chicago etc. Ry. Co., 109 Iowa, 628, post, p. 557, and note; Chicago etc. Ry. Co. v. Caulfield, 63 Fed. Rep. 396. Hence an instruction which requires all the care possible and the highest possible care as the amount of watchfulness required to discover and to prevent injury to a licensee or trespasser on the track is erroneous: Chicago etc. Ry. Co. v. Caulfield, 63 Fed. Rep. 396; Mobile etc. Ry. Co. v. Watby, 69 Miss. 145.

One who owns or operates a passenger elevator, either by himself or his agent, is bound, at all times, to exercise the highest possible degree of care and caution, both as to its construction, repair, and operation, to make it safe for all persons, whether passengers or employés, who have a right to use it, or who use it, with the owner's knowledge or consent. A person running an elevator in

his place of business is held to undertake to carry safely persons
riding therein as fully as human care and foresight can do. He
is held to extraordinary diligence and liable for the slightest neg-
lect in the management or care of such elevator: Treadwell v.
Whittier, 80 Cal. 575, 13 Am. St. Rep. 175; Hartford Deposit Co. v.
Sollitt, 172 Ill. 222, 64 Am. St. Rep. 35; Southern Bldg. etc. Assn.
v. Dawson, 97 Tenn. 367, 56 Am. St. Rep. 804, and extended note
thereto, 806-810, where the diligence and care required of elevator
owners is thoroughly discussed.

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Another situation where the rule under discussion is applied is

where a person or company uses wire to convey electricity. They

are required to use very great care to prevent injury to person or

property. A failure to raise such wire so high above a roof that those

having occasion to go there will not come in contact with it is neg-

ligence. The fact that a dangerous agency, such as electricity, is

used as a commodity raises no presumption that the public know

enough of its nature to avoid the danger arising from its use, and

the public, aside from consumers, owe no duty to those introducing

it. On the other hand, it is the duty of those making a profit from

the use of such a dangerous element to use the utmost care to pre-

vent injury to all classes of persons, and they must protect those

possessing less than ordinary knowledge of the character of the

commodity. Hence, a person brought in contact with electric wires

is not required to exercise more care to avoid injury than is usual

under similar circumstances among careful and prudent persons

of the class to which he belongs, unless he is especially informed

of the danger. A common laborer is not required to use as much

care and prudence as is exacted of a better educated person:

Giraudi v. Electric Imp. Co., 107 Cal. 120, 48 Am. St. Rep. 114; Per-

ham v. Portland Electric Co., 33 Or. 451, 72 Am. St. Rep. 730, and

note, 754.

A corporation permitted to construct and maintain a line of elec-

tric wires in the public streets for the purpose of private gain owes

the duty to persons upon the street of so conducting its business

as not to injure them. It must, therefore, keep its wires out of

the way of persons using the streets so that they will not receive

personal injury by coming in contact with such wires. Such cor-

porations are held to the highest degree of care in regard to the con-

struction, inspection, and repair of their wires and poles, and are

liable for the slightest neglect. Negligence is inferred from the

happening of an accident, and proof that there was a live wire

down in the street, carrying a deadly current of electricity, raises

a presumption of failure of duty to the public: Haynes v. Raleigh

Gas Co., 114 N. C. 203, 41 Am. St. Rep. 786, and note, 792.

Persons using a powerful explosive in blasting are charged with

knowledge of any fact in reference to its actual effect that they
could by reasonable diligence have ascertained. They come within
the rule under discussion, and must exercise the highest possible

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