This part of the case is not much pressed; but the point is understood as being, that granting the driving-bar to have been, as the plaintiff knew, a dangerous seat, and also admitting that the fact of his occupying it was a proximate contributory cause of his injury; yet as his sitting there was on the driver's invitation it ought not to be reckoned as contributory negligence. There is no doubt that it has been laid down as a rule that an assignment of the passenger by the carrier to a position of danger may in case of injury estop the carrier from setting up the occupation of that position as contributory negligence. But the rule is plainly not one of universal application.

Regard must be had to the passenger's capacity to look out for himself; to the opportunity there may be to get a safer position; to the distinctness, certainty and extent or degree of the peril, and

so on.

Take the case of a child, and the case of a man every way qualified to take care of himself; the case where the position given seems tolerably safe and no better one is perceived; and the case where it is manifestly one full of danger and a safe one is known which is equally accessible. It would be very unreasonable to apply the rule equally to all. May the ordinary passenger, with his eyes open and with abundant accommodations before him which are safe, accept an invitation from the carrier to ride on the cow-catcher, and then, if injury arise from it, be allowed to set up the invitation as a legal answer to the charge of contributory neg ligence? To conclude that he might would be to permit a person of full capacity to exempt himself from the duty and responsibility appertaining to him as a moral being and in substance to stultify himself in order to cast a liability on another.

"Judges cannot denude themselves of the knowledge of the incidents of railway travelling which is common to us all." Siner v. Great W. Ry. Co. L. R. 4 Ex. 123; Dublin, Wicklow, and Wexford Ry. Co. v. Slattery, 3 App. Cas. 1155; 24 Eng. 713; Lake S. and M. S. R. R. Co. v. Miller, 25 Mich. 274. And in the example put the negligence would be so obvious and its commission so palpably and certainly inexcusable that a court would not be justified in treating the question of the passenger's responsibility as an open one. A direct charge would be called for.

Other cases may be supposed where from the nature of the cir cumstances a blind acceptance of the carrier's suggestion, however hazardous, would not so clearly reveal the passenger's disregard of that primary duty which rests on every one to exert his own will and judgment to guard against needless perils, as to justify the judge in taking the matter from the jury. No doubt the riding on a cow-catcher would, to ordinary apprehension if not in fact, be an exposure to consequences more serious than any at all probable to arise from riding on the driver's bar of a street car in the

way in which the plaintiff rode on this occasion; but the unfitness of the situation and the fact that it involves great risk of some injury more or less severe and is therefore one of extreme danger, is just as conspicuous in the one case as in the other.

Indeed, the proposition is a plain one that different exposures to material bodily injury may be equally great, whilst the severity of the injuries threatened by the exposures may be entirely dif

ferent.

Was there any proper case to be submitted on the second ground? The position taken here is, that supposing the plaintiff's fall to have arisen from his own carelessness, yet that the defendant was then bound to use ordinary care to avoid hurting him, and that there was evidence before the jury tending to show that he did not. The argument for this view concedes that the evidence given for the plaintiff affords no basis for it, and that the record contains nothing to countenance it except the testimony of Mr. Whiting, a witness for the defendant. The various witnesses had different opportunities for seeing what took place, some noticing one incident and some another, and each has explained in his own style how matters looked to him, in his position and under his state of mind and attention. But as to the point under consideration the testimony of no one derogated from the current tendency.

We shall not pause to examine the right of a trial judge to step aside from the plaintiff's evidence and take up and put to the jury as an account on which a finding for the plaintiff would be regular the statements of a witness on the other side who assumes to give only a part of the transaction, and shows that he was not in à situation to see the rest and did not see it, and whose testimony as far as it goes is reconcilable with the other evidence for the defence. The inquiry is unnecessary because the case may be well disposed of on the theory of plaintiff's counsel.

What were the circumstances, so far as indicated by Mr. Whiting? He sat on the front seat next to the platform, and with his back towards it, and on the same side from which the plaintiff fell. He was engaged in conversation with Mr. Dyer. His position enabled him by a "side glance" to look out the window. The plaintiff fell backward from the rail and a noise occurred, and the witness made a "side glance," and looking through the window saw the plaintiff clinging with both hands to the dash-board." He was dragging on the ground nearly under the car, and was so dragged about ten feet. The witness did not look towards the platform, and did not see the attempt by the driver, as explained by other witnesses, to extricate or save the plaintiff. What he saw was by looking through the window and he did not see the driver. He says the car was going quite slow, and when he discovered the plaintiff clinging to the "dash-board" the brake was on and the

car under check, and he thought the car was stopped as quick as possible. When we consider that the plaintiff was a heavy man, that he fell off backwards, that the driver had his horse and the brake to attend to, and actually caught hold of the plaintiff and tried to rescue him, and that the space of time between the fall and the injury could not have exceeded five seconds, it is impossible to say that there were any facts on which the jury could find that the defendant, after the plaintiff's fall, omitted to do anything which a street railway company of ordinary care would have done in the like circumstances.

I think the judge committed no error in ordering a verdict for the defendant, and that the judgment should be affirmed with

costs.

The other justices concurred.

See note, 2 Am. and E. R. R. Cas. 26; also note to Louisville, etc., R. R. Ca. v. Weams, post, p. —.

OHIO AND MEMPHIS PACKET Co.

v.

McCooL.

(Advance Case, Indiana. October 25, 1882.)

The principle that, where a passenger is injured while in course of transportation by a common carrier, proof of the occurrence of the accident constitutes 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.

A. brought an action against a steamboat company, alleging that while standing at the foot of a stairway on the defendant company's boat he was injured by a bale of cotton which the defendant's servants negligently allowed to fall down the hatchway. On the trial the court admitted evidence on behalf of the plaintiff to show that the stairs of the boat in question were steeper than the stairs of other boats. Held, that this evidence was foreign to the issue, and should have been excluded, and that its admission constituted error.

Where an attempt is made to impeach the credibility of a witness by proof of bad reputation, the party making such attempt may-having produced slight evidence of bad reputation at the time of the trial-extend back his evidence on that point for a reasonable period.

APPEAL from the Vanderburg Superior Court.
Denby & Kumbler, for appellant.

B. & G. Shackelford, for appellee.

ELLIOTT, J.-The complaint of the appellee alleges that the appellant is a common carrier of passengers, owning and using for

the purpose of carrying passengers for hire a steamboat called the James D. Parker; that he was received as a passenger on said boat; that while standing near the foot of a stairway, used for discharging and receiving passengers and freight, the appellant's servants, engaged in loading a bale of cotton goods of great weight, negligently suffered it to fall from the top of the stairway upon the appellee, seriously bruising and wounding him.

The questions requiring examination arise upon the ruling denying a new trial.

The appellee proved by Robert Roberts that at the time of the trial, and in Evansville, the reputation of Jacob Hoylin, one of appellant's witnesses, was bad, and was afterwards permitted to prove by Andrew J. Ruthledge what it was prior to his removal to Evansville, in the town of Newburg, eight miles distant, and while he (Hoylin) lived there a time two or three years anterior to his taking up his residence in Evansville.

On cross-examination Roberts testified as follows: "I never heard any one in Evansville say anything about Hoylin's reputation, except John Ingle. I heard him say it was bad a year ago next summer. I have heard my father and others talk about his reputation at Newburg." It may be granted that Roberts's testimony is not very much weight, yet it certainly does tend to prove the reputation at the time of the trial, and at the place where the witness Hoylin then resided, and this gave the appellee a right to go back, within reasonable limits, to other times and places. Where there is evidence showing the character at the time of the trial, the assailing party may follow back the line of the witness's life to ascertain what it was at a prior time. Reputations ordinarily are things of slow growth, but there may possibly be cases where the transformation from good to bad or bad to good is sudden and rapid. However this may be the question is one of fact, and the jury are to be put in possession of such evidence as shall enable them to intelligently comprehend and decide it. If any attacking party should prove the reputation for a month before the trial, would he not greatly strengthen his attack by travelling back a year or two, and showing the continuous nature of the witness's reputation? So if the witness assailed should show his reputation at the same period, would he not materially strengthen his defence of his character by evidence running back into his life for a reasonable time? Suppose for illustration the assailing party gives evidence of the witness's reputation for a brief time before the trial, as a day, a week, a month, and the defending party gives evidence commencing at the same period, and extending back to other times, would not the case of the latter, all other things equal, be much the stronger?

The cases are all agreed that the character at the time of the

trial is the question in issue, but they are not all agreed as to how this issue shall be proved.

Some of the cases in our own reports intimate that the evidence must be confined to the time of the trial; others say that the evidence may be directed to a reasonable time anterior to the trial, but with the question as presented in the cases referred to we are not at present immediately concerned, for here there was some evidence of the witness's reputation at the time of the trial, and this fact distinguishes the case in hand from those referred to. We think that the appellee had a right to take up the witness's reputation, and trace it back within reasonable bounds, for such a length of time as should enable the jury to decide upon the credibility of the witness, who spoke of it with reference to the time of the trial, and we cannot say that two or even three years was an unreasonable limit.

In People v. Abbott, 19 Wend. 192, Cowen, J., said: "The character of the habitual liar or perjurer seven years since would go at least to fortify the testimony which should now fix the same character to the same person. Witnesses must speak on this subject in the past tense.

"Character cannot be brought into court and shown to then at the moment of trial. A long-established character for good or evil is always more striking and more to be relied on than that of a day or month or a year.

Grandison Terry, a witness for the appellee, was asked upon his direct examination this question:

"How do the steps on the Parker compare with the steps on other steamboats?" Appellant's counsel objected and stated specific grounds of objection. It will be seen from our synopsis of the complaint that there is no charge that the steamboat was improperly constructed or equipped, and that the sole cause of complaint is the negligence of the servants who were engaged in moving the bale of cotton goods.

The appellant was not, therefore, called upon to meet any question as to the manner in which its boat was constructed; the only charge it was required to defend was that of the negligence of its servants. It was competent to prove the location of the stairway, its abrupt or gradual ascent, for these were matters connected with the occurrence which caused the appellee's injury.

It was proper to show all the surroundings for the purpose of enabling the jury to correctly determine the question of negligence on the part of the appellant as well as the question of the appellee's freedom from negligence. But it was not proper to bring into the case a question as to whether the stairway was or was not constructed with due care and skill. Evidence that the stairway was an insufficient and defective one might support a cause of action, but not the one declared on, and the appellee had no right to estab