In determining these questions, upon which it was assumed that there was conflicting evidence, the question of the burden of proof arose. And, in stating the definition of the word "preponderance," this instruction complained of was given. It was, in fact, a definition of the term "preponderance of evidence," and, as a definition,

was correct.

In the case of Dunbar v. McGill, 1 Mich. (L. ed.) 631, 7 West. Rep. 877, when the action was in trover for the alleged conversion of a flock of sheep, the trial judge instructed the jury: "If you find that these were Dunbar's sheep,-that there is a greater probability that they were Dunbar's sheep than that they were not," and other things occurred as claimed by plaintiff, he could recover. We held this charge erroneous because it permitted or authorized the jury to find that the sheep were Dunbar's, without their being convinced of that fact.

The charge here is not open to this objection. If the evidenceof the plaintiff is more probable than that of the defendant, it certainly outweighs it; and, if it outweighs it, the proponderance is with the plaintiff. That is all the instruction complained of amounted to. This does not of course relieve the jury from the duty of finding that the plaintiff's evidence is true, in order to render a verdict in his favor. But in this case, if the evidence of the plaintiff was to be believed, he was entitled to recover. On the other hand, if the defendant's testimony was taken as true, he could not recover. One version or the other was the true one. The jury, in determining between them, had the right to weigh the probabilities of the different stories, to ascertain which was correct.

This is what they did, and were properly instructed to do. There was nothing in this instruction that authorized the jury to guess either that the defendant was negligent or the plaintiff without fault. They were told to find these facts, and were simply authorized, in getting at the truth, to weigh the probability of the different versions, and if they found one more probable than the other it preponderated over it.

The charge of the court cannot be complained of in any respect except as to the influence of liquor, if any such influence was found upon the action of the plaintiff.

For the error in this respect, the judgment of the court below must be reversed, with costs of this court, and a new trial granted. Sherwood and Champlin, JJ., concurred.

Intoxicated Passengers entitled to Due Care. The fact that a man is intoxicated does not free the company from its duty to render to him, as a passenger, due care. It is the duty of a carrier of passengers to observe the same care to a drunken as to a sober man. Milliman v. N. Y. C. & H. R. R., 66 N. Y. 642; see also, Giles v. Great Western R. Co., 36 Upper Canada, Q. B. 360, 369.

In Robinson v. Pioche, 5 Cal. 460, Heydenfeldt, J., observes: "A drunken man is as much entitled to a safe street as a sober one, and much more in need of it." And in Giles v. Great Western R. Co., 36 Upper Canada 369, Wilson, J., discussing the liability of the company for the injury of a passenger who was, as the conductor said, "pretty drunk" when he got on the train, observed that the defendants would not be liable for his injury "unless the conductor knew the deceased was intoxicated and unable to take care of himself, in which case the conductor would certainly, having taken him as a passenger, be bound to give him that degree of attention as to his safety while under his care which a man in the state of the deceased is fairly entitled to beyond that of an ordinary passenger."

Intoxication as Contributory Negligence. If the intoxication of the party injured has contributed to the injury, he cannot recover. Kean v. B. & O. R., 61 Md. 154; s. c., 19 Am. & Eng. R. R. Cas. 321; Milliman v. N. Y. C. & H. R. R., 66 N. Y. 642; C., R. I. & P. R. v. Bell, 70 III. 102; I. C. R. v. Hutchinson, 47 Ill. 408; Maguire v. Middlesex, R. Co. 115 Mass. 239.

When Evidence of Intoxication Admissible.-The intoxication of the party injured is admissible in evidence to prove contributory negligence. H. & T. C. R. v. Waller, 56 Tex. 331; s. c., 8 Am. & Eng. R. R. Cas. 431; S. W. R. v. Haukerson, 61 Ga. 114; Herring v. W. & R. R. 10 Ired. (N. C.) 402; Cleveland, etc., R. Co. v. Sutherland, 19 Ohio St. 151; Alger v. Lowell, 3 Allen (Mass.), 402; Cramer v. Burlington, 42 Iowa, 315; Thorp v. Brookfield, 36 Conn. 321; Detchett v. Spuyten Duyvil, etc., R. Co., 5 Hun (N. Y.),

165.

In Wynn v. Allard, 5 W. & S. (Pa.) 524, the court said: "The evidence of intoxication ought to have been received; not because the legal consequences of a drunken man's acts are different from those of a sober man's acts, but , because where the evidence of negligence is nearly balanced, the fact of drunkenness might turn the scale, inasmuch as a man partially bereft of his faculties would be less observant than if he were sober, and less regardful of the safety of others."

Hearsay Evidence of Drunkenness not Admissible.-In Lake Erie & Western R. Co. v. Zoffinger, 15 Am. & Eng. R. R. Cas. 371, the plaintiff had been struck by a moving train at a street crossing, the defence was that plaintiff was intoxicated, and the railroad company offered to prove that just before the accident, the plaintiff, in a saloon, called for a drink of liquor, and the barkeeper told him he had enough; the court rejected the offer. Held, that the evidence was properly refused, as the fact of plaintiff's intoxication could not be proved by the declaration of a third person.

Railroad Company not bound to carry Intoxicated Passengers.-Common carriers of passengers are not bound to carry drunken persons; they have the right to repress and prohibit all disorderly conduct in their vehicles, and to expel or exclude therefrom any person whose conduct or condition is such as to render acts of impropriety, rudeness, indecency or disturbance either inevitable or probable. Vinton v. Middlesex R. Co. 11 Allen (Mass.), 304; Atchison, etc., R. Co. v. Weber, 21 Am. & Eng. R. R. Cas. 418; see also notes to 19 Am. & Eng. R. R. Cas. 321, and 21 Am. & Eng. R. R. Cas. 418.

LAKE SHORE AND M. S. R. Co.

v.

BROWN, Adm'x.

(Advance Case, Illinois. November 11, 1887.)`

In an action against a railroad company, for damages for the death of plaintiff's intestate, it appeared that the deceased was entitled to transportation on defendant's road; that by invitation and direction of defendant's servant he got upon the foot-board of the engine, from which he was thrown and killed. Held, that if the place he was directed to take was one of more than ordinary peril, defendant's servants were required to exercise a degree of care corresponding to the danger to which they had exposed him.

In an action against a railroad company, for damages for the death of plaintiff's intestate, there was evidence showing that deceased, a shipper of stock, was entitled to transportation from the switch-yard to the stock-yards; that the only means furnished were the top of a stock-car or the engine; that, by direction of the engineer, he got upon the foot-board of the engine. The defendant asked for the instruction that common prudence dictated that he should put himself in the safest place possible, and if the engine was not as safe as the car, he was guilty of negligence. Held, that the instruction was properly refused, as it ignored the question whether the deceased was directed to take the place he did by defendant's servants, and also their negligence in the management of the engine.

Though a train is not operated for the purpose of carrying passengers, yet if those in control thereof assume to carry a passenger, and he gets on the train by their invitation and direction, they are bound to operate the train in such a manner as due care and attention would suggest for the safety of the passenger.

In an action against a railroad company, for damages for the death of plaintiff's intestate, where it appeared that the deceased was entitled to transportation, and had got on the engine by direction of the engineer, the defendant asked the instruction that, if the jury found the rules of the company forbade an engineer to allow a person, not an employee, to ride on the engine, then the deceased was not rightfully on the engine. Held, that the private rules and regulations of a railway company prescribing the duty and power of its employees, cannot affect a person having no notice of them, nor is he bound to stop and inquire the extent of the servant's authority.

In an action against a railway company for damages, the declaration alleged that the deceased, a shipper of stock, had the right to be carried with his stock to the stock-yard, and that he was rightfully, and by the direction of defendant's servant, upon the engine in transit to his destination. The defendant objected to the admission of evidence showing the custom of defendant in allowing shippers of live-stock to ride upon its engines and cars from the switch-yard to the stock-yard. Held, that the allegations in the declaration were broad enough to admit of any legitimate proof tending to show the right of deceased to be on the engine, and the evidence 'objected to was competent, as tending to show the authority of defendant's servant to carry deceased, and that he was a passenger for reward.

Where the servants of a railway company, with apparent authority, directed a passenger to take passage on its engine, it cannot escape liability for an injury to him, resulting from the negligence of its own servants, by showing that he might have procured passage by some other line of travel.

In an action against a railway company, for damages for death of plaintiff's intestate, the court instructed the jury that if they found the deceased was rightfully on the engine by invitation and direction of defendant's servant, that he used ordinary care for his personal safety, and was injured by the carelessness of defendant's servants, the plaintiff could recover; but if they did not believe a man of ordinary care and prudence would ride upon an engine as deceased is shown to have done, plaintiff could not recover. Held, that these instructions are not erroneous, as unfair statements of the issues, and do not tend to mislead the jury into understanding that the plaintiff might recover, although deceased was negligent in getting on the engine and remaining there.

In an action for damages for death of plaintiff's intestate, caused by negligence of the servant of a railway, the defendant asked the court to instruct the jury, as a matter of law, that the deceased, having undertaken to ride on defendant's engine, though by invitation and direction of defendant's servant, was not a passenger, and could claim none of the rights of a passenger. Held, that whether or not deceased was a passenger is a question of fact for the jury, and the instruction was properly refused.

In an action against a railway company, for damages for the death of plaintiff's intestate, the defendant asked the court to instruct the jury, as a matter of law, that it was not under obligation to furnish the deceased, a shipper of stock, with transportation from the switch-yard to the stockyards. Held, that, as there was evidence tending to show that the deceased was entitled to such transportation, the question was one for the jury.

When a fact has been testified to by two witnesses, and not controverted, it is not reversible error to refuse to permit the party to accumulate evidence on that particular point.

CRAIG, J., dissenting.

APPEAL from appellate court, first district.

Cyrus D. Roys and Pliny B. Smith for appellant.
Geo. M. Stevens and Geo. A. Du Puy for appellee.

SHOPE, J.-This was an action by appellee, as administratrix of Nelson Brown, deceased, to recover damages for causing the death of said deceased. The trial in the superior court of Cook county resulted in a verdict for plaintiff, and judgment thereon. Upon appeal to the appellate court of the first district, the judgment of the superior court was affirmed, and the case is brought here by the further appeal of the railroad company.

If the case was properly submitted to the jury, they, by the ver dict rendered, necessarily found every fact material to a recovery in favor of the plaintiff. We must accept the general judgment of affirmance as settling all questions of fact favorably to the plaintiff below, and that the evidence is sufficient to sustain the finding of the jury under the issues, as made by the pleadings in the case. We must assume, therefore, that plaintiff's intestate was rightfully a passenger on defendant's train, in charge of his stock,

and had a right to be safely carried to the Union stock-yards, and was, as between himself and defendant, rightfully and by invitation and direction of defendant, by its servants in charge of his stock and of defendant's engine, on the foot-board of the engine, as alleged in the declaration, and was, at the time of his injury, in the exercise of due and ordinary care for his safety, and that his injury and death were caused by and resulted from the gross neg ligence of defendant's servants in the running, management, and operation of the engine upon which he was so by invitation rightfully riding, as charged in the declaration. Our consideration will, therefore, be confined to questions of law which arise upon the admission and exclusion of evidence, and to instructions given, refused, or modified at the trial.

ON

The principal question, and the one of greatest difficulty, is in reference to the alleged negligence of the deceased in PASSENGER getting upon the foot-board of the switch-engine, and ENGINE. attempting in that position to ride from Forty-third street to the stock-yards. Many of the instructions asked by appellant proceed upon the theory that the deceased was guilty of such negligence in so being upon the foot-board of the engine as to prevent a recovery by his personal representative. It cannot be said, however, that the deceased, in getting on the foot-board of the engine, and remaining there, was in violation of any duty imposed upon him by law; nor is it conceded that in so doing he acted with less circumspection and care for his personal safety than would have been observed by prudent and ordinarily careful men under like circumstances. Indeed, this is the sharply-controverted question in the case, and the question of negligence was, therefore, a question of fact to be determined by the jury, upon consideration of all the facts and circumstances proved. Railroad Co. v. O'Connor, 119 Ill. 586.

The test of plaintiff's right of recovery in this case was the exercise by the deceased of ordinary care, that is, such care as a prudent and ordinarily cautious man would exercise for his personal safety, and the failure of appellant to exercise such care, and that by reason thereof the injury and death occurred. It cannot be said as a matter of law that a prudent and ordinarily cautious man would not, under any circumstances, ride a short distance upon an engine. Experience has shown there is some danger in the safest mode of railway travel, and it cannot be said that one must not take a particular mode of carriage because it is dangerous. The question can only be determined as before stated by a consideration of all the attending circumstances.

In this case it is alleged in the declaration, and the jury have found, that the deceased had the right to be carried over FACTS. the defendant's road to the stock-yards; then, evidence tend