teller of the bank, but no negligence on the part of the bank was established, and a verdict for the defendant on that ground was sustained. The receipt of the bonds was not claimed to be ultra vires.

In First National Bank of Carlisle v. Graham, 79 Penn. St. 106; S. C., 21 Am. Rep. 49; Thomp. N. B. Cas. 875, the plaintiff sued for the loss of U. S. bonds claimed to have been deposited by her with the bank, and relied upon a receipt for the bonds signed by the cashier of the bank, in which he acknowledged that she had left the bonds in the bank for safe-keeping. It was admitted that government bonds were received by the bank for safe-keeping with the knowledge of the president, cashier and teller, and without compensation. A verdict and judgment having been rendered for the plaintiff, it was reversed on exceptions to rulings on questions of evidence or to some portions of the charge in submitting to the jury the question of negligence, but on the point of the liability of the bank the doctrine of Foster v. Essex Bank was emphatically reiterated, and it is stated that the rule as laid down in that case has been uniformly applied iu the Supreme Court of Pennsylvania in cases involving the rights and duties of National banks.

In Turner v. First National Bank of Keokuk, 26 Iowa, 562; Thomp. N. B. Cas. 454, the liability of a National bank for a special deposit of bonds was also recognized. Smith v. First National Bank of Westfield, 99 Mass. 605, was also a case of a special deposit of bonds with a National bank, and the bank was held to be bailee of the bonds liable only for want of ordinary

care.

To the same effect is Giblin v. McMullen, L. R., 2 P. C. 317.

In Chattahoochie National Bank v. Schley, 38 Ga. 369; Thomp. N. B. Cas. 379, the court after referring to some of the cases which have been cited, and also to the recent cases of First National Bank v. Ocean National Bank, 60 N. Y. 278; S. C., 19 Am. Rep. 181; Thomp. N. B. Cas. 728; Wiley v. First National Bank of Brattleboro, 47 Vt. 546; S. C., 19 Am, Rep. 122; Thomp. N. B. Cas. 905, summarizes its view of the existing law as follows: "By habitually receiving through its cashier special deposits to be kept gratuitously for mere accommodation, a National bank will incur liability for gross negligence in respect to any such deposits received in the usual way." This I adopt as a concise and accurate statement of the result of the decisions to which I have referred.

The only adjudications to be found in conflict with this doctrine are the cases of Wiley v. First Nat. Bank, 47 Vt. 546; S.C., 19 Am. Rep. 122; Thomp. N. B. Cas. 905, followed by the same court in 50 Vt. 389, Browne's N. B. Cas. 69, note, where it was held, in direct opposition to all the cases I have cited, that when a special deposit is received by a National bank, even in accordance with usage, and with the knowledge and acquiescence of the directors of the bank, the bank is not liable for its loss even by gross negligence; and this is put upon the ground that the bank has no corporate capacity to receive such deposits for safe-keeping, and consequently cannot empower any of its officers to incur liability in its behalf by so doing.

There are some cases in which the Vermont cases are referred to with approval by the judge writing the opinion (Third National Bank of Baltimore v. Boyd, 44 Md. 47; S. C., 22 Am. Rep. 35; Thomp. N. B. Cas. 45; First National Bank v. Ocean National Bank, 60 N. Y. 278; S. C., 19 Am. Rep. 181; Thomp. N. B. Cas. 728), but there is no other adjudication to the same effect. In the case in 60 N. Y. the opinion expressly states that it is unnecessary to consider the question of the power of the bank; that it is a question not free from difficulty, but can be more satisfactorily considered when it becomes necessary to a judgment. The opinion proceeds upon the ground

that the receiving of special deposits was not shown to be part of the ordinary business of the bank; that there was an entire absence of evidence that it was the habit or practice of the defendant to receive such deposits; that no authority to the cashier or assistant cashier to receive special deposits had been shown, and whatever might be the incidental powers of the corporation, the power of its officers to bind it can be presumed only to exist within the scope of its ordinary business and their ordinary duties.

It is upon this distinction between the facts in the case before the court, and those in Foster v. Essex Bank, that the opinion proceeds and not upon a rejection of the doctrine of that case. The opinion even in so far as it rests upon that distinction was not concurred in by the majority of the court, there being an exception upon another point which was sufficient ground for reversal of the judgment, and the majority concurred only in the result. What is said by the learned judges in respect to the Vermont case is merely incidental, and forms no part of the reasoning of the opinion and was not considered or passed upon by the court.

Appended to a report of the case in 47 Vermont, contained in 14 Am. Law Register (N. S.), 348, is a note by an eminent jurist, approving the decision, and criticising the proposition that any practice or usage of a bank in receiving special deposits can supply the want of corporate power, and respecting the same arguments which were urged by counsel in the case of Foster v. Essex Bank, 17 Mass. This want of corporate power is alleged on the ground that the power to receive deposits does not embrace receiving special deposits of valuables for safe-keeping, and that the receipt of deposits of that character is wholly outside of and foreign to the business of banking, and cannot be regarded as incidental to that business.

For the purpose of determining whether such is the case the counsel for the respondent have referred to the history of banking from its earliest period, and to the definitions by lexicographers of the banking business. This would seem to be a proper way of ascertaining what is legitimately within the scope of the business of banking and what are the powers of corporations formed for the purpose of carrying on that business. When the attributes of a particular calling come in question they can only be ascertained by showing what has been the general usage and practice of persons engaged in that calling, and what business has been generally transacted by them and understood to appertain to such calling. Thus only can it be ascertained what transactions are within or without the scope of such calling. A reference to the history of banking discloses that the chief, and in some cases the only, deposits received by the early banks were special deposits of money, bullion, plate, etc., for safe-keeping, to be specifically returned to the depositor. That such was the character of the business done by the Bank of Venice (the earliest bank) and the old Bank of Amsterdam, and that the same business was done by the goldsmiths of London and the Bank of England, and we know of none of the earlier banks where it was not done. The definition of the business of banks of deposit in the Encyclopedias embraces the receiving of the money or valuables of others to keep until called for by the depositors; Encyclopedia Americana, fol. 1; id. 543; English Encyclopedia of Arts and Science, fol. 1, 833, 837, 841, and although in modern times the business of receiving general deposits has constituted the principal business of the banks, it cannot be said that the receiving of special deposits is so foreign to the banking business that corporations authorized to carry on that business are incapable of binding themselves by the receipt of such deposits. The numerous cases in the books relating to special deposits in banks disclose how extensively even in

modern times this business has been and is carried on, and the general understanding in respect to it. The very act of Congress under which the National banks are organized recognizes the practice, and provides for the return of special deposits by National banks, even when required to suspend their general business. Section 46 of the act of 1864 provides that in certain events the banks shall cease to prosecute business, "except to receive and safely keep money belonging to them, and to deliver special deposits." This provision assumes that such banks will receive special deposits, and impliedly recognizes and sauctions their so doing by making express provision enabling them to return them at a time when they are prohibited from paying out to depositors funds held on general deposit. The Vermont case referring to this provision says that it was not intended to extend the powers of the bank. Perhaps not; it rather indicates that the framer of the Bank Act assumed that banks have power to receive special deposits without any express authorization, and that it was an incident of the banking business, and would as such be exercised by the banks. It is further suggested that the term "special deposits" refers to securities held by the banks as collateral to loans. This interpretation is wholly inadmissible; such securities are in no sense deposits. The term "special deposits" has and always has had a well-known and defined meaning. In Marine Bank v. Fulton Bank, 2 Wall. 252, 256, Miller, J., says: "All deposits made with bankers may be divided into two classes, namely, those in which the bank becomes bailee of the depositor, the title to the thing deposited remaining with the latter; and that other kind of deposit of money, peculiar to banking business, in which the depositor for his own convenience parts with title to his money and loans it to the banker." This description marks the distinction between the general and special deposits. In Story on Bailments, § 88, the same distinction is recognized and also in Rawson v. Real Estate Bank, 5 Pike (Ark.), 297. In the Vermont case itself at page 554, the court defines general deposits and says that at the time of the passage of the act, deposits in banks had a well-known and understood meaning and that the delivery of money securities or other property to be specially kept and redelivered had been equally well-known as special deposits, and in Turner v. First National Bank of Keokuk, 26 Iowa, 562; Thomp. N. B. Cas. 454, the authority to return special deposits contained in section 46 is held to refer to deposits of securities for safe-keeping.

That it was understood at the time of the passage of the National Banking Act that the banks organized under it were authorized to receive special deposits is further evidenced by a contemporaneous circular addressed to the banks by the eminent Comptroller of the Currency, H. McCullough in 1864, in these words: "In order to encourage economy and the habit of saving among the poor of the country and more especially of the large cities, it is suggested that the National banks act as custodians without charge of United States bonds and other representatives of value which that class of persons desire to leave with them for safe-keeping. Bank officers that approve of this suggestion will please give such notice of their willingness so to act, as is necessary for the information of the parties who are to be benefited." The Banking Act was passed and this circular was issued in the light of the decision in the case of Foster v. Essex Bank, which declared the extent of liability incurred by banks in respect to such deposits, a case often cited and well known, especially among those concerned in the business of banking. It cannot be doubted that it was well known to the framers of the act and the banking department, and there is nothing in the act or in the contemporaneous history to indicate that it was the policy or intention to establish any rule in respect

to National banks different from that enumerated in that case.

On the question of corporate power, we are therefore of opinion that National banks have power to receive special deposits gratuitously or otherwise, and that when received gratuitously they are liable for their loss by gross negligence.

The next question in the case is as to the authority of the teller to act for the bank in receiving the deposit in question. The evidence bearing on this point was that the bank had been accustomed to receive packages supposed to contain securities from various persons for safe-keeping; that Orrin Ballard was cashier of the bank, and his son Leon Ballard was teller, but sometimes acted as cashier in the absence of his father; that Orrin Ballard had the management and control of the affairs of the bank. It did not appear that the president or directors took any part in its management or that the directors held any meetings. That some of the persons who left valuables in the bank for safe-keeping were directors. That at some time before the deposit in question a trust company was formed in Syracuse for the receipt of valuables for safe-keeping, and that after the formation of this company Mr. Ballard, the cashier, said to his son that they had better not take any more packages for safe-keeping, but the son says that this was not a positive instruction, but only an expression of opinion, and he afterward received packages. The son also testified that he told the plaintiff that his package would be at his own risk. This was contradicted by the plaintiff. The teller also testified that his father sometimes told persons depositing packages there that they would be at their own risk, but that on other occasions packages were received without such notice. The package of the plaintiff was left by him with the teller at the bank and remained there some two years before it was lost, being occasionally taken out by the plaintiff to cut off coupons etc., and returned by him to the bank. The court submitted to the jury the question whether the teller had been authorized to receive such deposits, whether he did so in his individual capacity or in behalf of the bank, and whether he told the plaintiff that the package would be at his own risk, and whether the teller had been directed to discontinue receiving deposits of securities, and instructed the jury that if the deposit was with the teller as an individual the plaintiff could not recover. We think the evidence was sufficient to justify the submission to the jury of the questions of the authority of the teller, and whether the deposit was with the bank in this mauner, and that their verdict establishes such authority, and that the deposit was with the bank and not with the teller in his individual capacity. The entire management and control of the affairs of the bank having been left with the cashier, his acts and the authority conferred by him upon the teller must be deemed binding on the corporation.

The verdict thus establishing that the plaintiff's securities were received on deposit by the bank, it was bound either to return them or show some sufficient ground for not doing so. It claims that they were stolen from the safe by some person other than the employees of the bank, and the remaining question in the case is whether the theft was suffered through gross negligence of the bank in the care of the bonds. This question was submitted to the jury, and we think the evidence was sufficient to authorize such submission. There was no burglary, and no direct explanation of the circumstance of the loss of the bonds, but there is evidence in the case tending to show that if stolen, the theft was committed in the day time while the bank was open. That the bonds were in a safe so situated as to be accessible to a person entering from the street; that the persons in the bank were so placed that at times the safe was not in their view, and that

sometimes the door of the safe was left open. The jury could from the evidence have found that the theft was committed by some person entering from the street and finding the safe open, who abstracted the plaintiff's package without being observed by any one in the room, and that leaving the property thus exposed was gross, negligence. There was some conflict and confusion in the evidence on these points, but these were matters exclusively within the province of the jury.

The fact that property of the bank was stolen at the same time from the same placo is not conclusive against the allegation of gross negligence. Dorman v. Jenkins, 2 Ad. & Ell. 256; Griffith v. Zipperwick, 28 Ohio St. 388; Tracy v. Wood, 3 Mason, 132; Wilson v. McIntosh, 1 Stark. N. P. 237.

These were all cases of gratuitous bailments and the question of gross negligence was left to the jury, notwithstanding that the bailee took the same care of the property as he did of his own which was stolen at the same time.

It has been argued on the part of the respondent that even assuming the receipt of special deposits to have been beyond the legal power conferred upon the bank by the law under which it was incorporated, yet that it having in fact received the plaintiff's property into its custody, it cannot set up its own want of corporate power as a defense to an action for not returning it, or for losing it by gross negligence. The conclusion which we have reached on the question of power renders it unnecessary to pass upon this point.

After a careful examination of the whole case we think the judgment should be affirmed. All concur.

CARRIER OF PASSENGERS-LIABILITY OF RAILROAD COMPANY FOR INJURY TO PASSENGER IN PULLMAN CAR.

SUPREME COURT OF THE UNITED STATES, NOVEMBER 22, 1880.

PENNSYLVANIA COMPANY, Plaintiff in Error, v. Roy.

A carrier of passengers, for hire, is bound 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. Such caution and diligence extends to all the appliances and means used by the carrier in the transportation of the passenger. He must provide cars or vehicles adequate, that is, sufficiently secure as to strength and other requisites, for the safe conveyance of passengers; and for the slighest negligence or fault, in that regard, from which injury results to tho passenger, the carrier is liable in damages. A passenger purchased from a railroad company a ticket over its line, and at the same time, from the Pullman Palace Car Company, a ticket entitling him to a berth in one of its sleeping-cars, constituting a part of the train of tho railroad company. In the course of transportation he was injured by the falling of a berth in the sleeping-car in which he was at the time riding. Held, that for the purposes of the contract with the railroad company for transportation, and in view of its obligation to use only cars that were adequate for safe conveyance, the sleeping-car company, its conductor and porter, were in law the servants and employees of the railroad company. Their negligence, or the negligence of either of them, as to any matters involving the safety or security of passengers, was the negligence of the railroad company. In such case, the passenger injured being entitled only to compensatory damages, evidence as to his poverty, or as to the number and ages of his children, is irrelevant. An exception to the admission of irrelevant testimony is cancelled when the court, before the final submission of the case to the jury, distinctly instructs them to dis

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regard such evidence. The presumption should be, so far as this court is concerned, that the jury based their verdict upon legal evidence only.

N error to the Circuit Court of the United States for the Northern District of Illinois. The opinion states the case.

HARLAN, J. This is a writ of error from a judgment for the sum of $10,000, the amount assessed as damages sustained by the defendant in error, in consequence of personal injuries received while riding, as a passenger, in a sleeping-car which belonged to the Pullman Palace Car Company, but constituting, at the time the injuries were received, a part of a train of cars managed and controlled by the Pennsylvania Company, as lessee and operator of the Pittsburg, Fort Wayne and Chicago railway. The action was commenced in the Supreme Court of Cook county, Illinois, against the Pennsylvania Company, the Pittsburg, Fort Wayne and Chicago Railroad Company, and the Pullman Palace Car Company. It was subsequently dismissed by the plaintiff against all tho defendants except the Pennsylvania Company, and then removed for trial into the Circuit Court of the United States for the Northern District of Illinois, where the judgment complained of was rendered.

The facts set forth in tho bill of exceptions, so far as it is material to detail them, are these:

On the 5th of June, 1876, Roy, the defendant in error, purchased at the office of the lessee company, in the city of Chicago, a "first-class railroad ticket " from that city to Philadelphia, over the line of that company, paying therefor the sum of $14.40. At tho same time and place, and of the same person, he purchased a sleeping-car ticket, issued by tho Pullman Palace Car Company, for the route between the same cities, and for that ticket he paid the additional sum of $5. He took the train the same day, going immediately into tho section of the sleeping-car corresponding to his ticket.

The next morning at Alliance, Ohio, upon the invitation of a friend, travelling upon the same train, he entered tho sleeping-car in which that friend was riding, and there engaged with him in conversation. While so engaged the upper berth of the section, in which they were sitting, fell. Thereupon the porter of the sleeping-car came at once and put up the berth, saying it would not fall again. Shortly thereafter the berth fell a second time, striking the plaintiff upon the head, injuring his brain, incapacitating him from the performance of his usual avocations, and necessitating medical treatment.

After tho second falling of the berth, the brace or arm supporting it was found to be broken.

The evidence introduced by the plaintiff tended also to show that the Pennsylvania Company provided cars in which passengers, having railroad tickets, could ride without purchasing a sleeping-car ticket; that Roy had much experience in travelling, and would have gone into one of those cars had he not purchased a sleepingcar ticket; that at the time he purchased the sleepingcar ticket he did not know what company ran the sleepers, but upon taking tho train he ascertained it was a Pullman car; that the Pullman Palace Car Company was engaged in furnishing cars to be run in the trains of railroad companies; that besides the general conductor of tho train, there was a conductor, in uniform, and a porter, whose duty it was to make up the berths and attend to tho wants of passengers occupying the sleeping-car.

Upon the trial the plaintiff introduced a time and distance card of the defendant corporation, issued, published, and circulated by that company during the year 1876, prior to the date of his injuries. That card, referring to the "Fort Wayne and Pennsylvania R. R. line," stated that three express trains left Chicago

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daily, one "with popular vestibule sleeping-car," one "with drawing-room and hotel-car," aud ono ' with drawing-room sleeping-car." It gave notice that "passage, excursion, and sleeping-car tickets" could be purchased at the defendant company's office in Chicago. Referring to the "Fort Wayne and Pennsylvania line," the same card announced that "no road offers equal facilities in the number of through trains equipped with Pullman palace sleeping-cars." It states, among the advantages of the "Pittsburg, Fort Wayne and Pennslyvania through line," that the latter was the "only line running three through trains, with Pullman palace cars," and "the only line ruuning sleeping-cars from Chicago and intermediate stations to Philadelphia without change." The same card gave the rates charged for berths and sections in Pullman sleeping-cars from Chicago to points east of that city. The defendant, to maintain the issues on its part, offered to prove:

1. That the sleeping-car in which the accident occurred, and all the sleeping-cars then and theretofore on the defendant's line since the 27th January, 1870, were owned by the Pullman Palace Car Company, a corporation of the State of Illinois, and not by the defendant; that said sleeping-cars were run in the same trains with the defendant's cars; that holders of railroad tickets were entitled to ride in said sleeping-cars, provided they also held sleeping-car tickets.

2. That the Pullman Palace Car Company, and it only, issued tickets for sale, entitling passengers to ride in said sleeping-cars; that such tickets were plainly distinguishable from railroad tickets, and were sold at offices established by said company, and indicated as places for the sale of such tickets; that the plaintiff purchased the sleeping-car ticket of the same person of whom he bought the railroad ticket; that the office where purchased indicated by plain lettering upon its door that it was a place for the sale of Pullman Palace Car Company tickets, as well as railroad tickets.

3. That the Pullman Palace Car Company employed persons to take charge of its cars, and whilst in use they were in the immediate charge of a conductor and a porter employed by that company; that such conductor and porter were the only persons who had authority to manage and control the interior of said cars, and the berths and seats and the appurtenances thereto.

To this proof the plaintiff objected, and the objection was sustained, to which ruling the company excepted.

The court thereupon charged the jury that the proof tended "to show that the injury was received by reason of the negligence of the defendant's agents or servants, or by some negligence in the construction of the car in which the plaintiff was riding." To that charge the company at the time excepted, upon the ground that it was unsupported by the testimony, and because it assumed as a fact that the persons in charge of the sleeping-car were the company's agents or servants.

The court further charged the jury that "the defendant has offered in your presence to prove that the car in which the plaintiff was injured was not the car or the actual property of the defendant, but was the property of another corporation. But I instruct, as a part of the law of this case, that if this car composed a part of the train in which the plaintiff and other passengers were to be transported upon their journey, and the plaintiff was injured while in that car, without any fault of his own, and by reason either of the defective construction of the car or by some negligence on the part of those having charge of the car, then the defendant is liable."

To that charge also the defendant excepted.
We are of opinion that there was no substantial

error, either in excluding the evidence offered by the defendant, or in the charge to the jury. The court only applied to a new state of facts, principles very generally recognized as fundamental in the law of passenger carriers. Those thus engaged are under an obligation, arising out of the nature of their employment, and on grounds of public policy, vigorously enforced, to provide for the safety of passengers whom they have assumed, for hire, to carry from one place to another. In Philadelphia & Reading Railroad Company v. Derby, 14 How. 486, it was said that when carriers undertake to convey persons by the powerful and dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence- that the personal safety of passengers should not be left to the sport of chance, or the negligence of careless agents. This doctrine was expressly affirmed in Steamboat New World v. King, 16 How. 474. In Stokes v. Saltonstall, 13 Peters, 191, affirming the decision of Chief Justice Taney on the Circuit, we said, that although the carrier does not warrant the safety of the passengers at all events, yet his undertaking and liability as to them go to the extent that he, or his agents, where he acts by agents, shall possess competent skill, and as far as human care and foresight can go, he will transport them safely. The principles there announced were approved in Railroad Company v. Pollard, 22 Wall. 350, where, speaking by the present chief justice, we said that we saw no necessity for reconsidering Stokes v. Saltonstall.

These and many other adjudged cases, cited with approval in elementary treatises of acknowledged authority, show that 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 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. Theso 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 are 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.

The undertaking of the railroad company was to carry the defendant in error over its line in consideration of a certain sum, if he elected to ride in what is known as a first-class passenger car; with the privilege, nevertheless, expressly given in its published notices, of riding in a sleeping-car, constituting a part of the carrier's train, for an additional sum paid to the company owning such car.

As between the parties now before us, it is not material that the sleeping-car in question was owned by the Pullman Palace Car Company, or that such company provided at its own expense a conductor and porter for such car, to whom was committed the immediate control of its interior arrangements. The duty of the railroad company was to convey the passenger over its line. In performing that duty, it could not, consistently with the law and the obligations arising out of the nature of its business, use cars or

vehicles whose inadequacy or insufficiency, for safe conveyance, was discoverable upon the most careful and thorough examination. If it chose to make no such examination, or to cause it to be made - if it elected to reserve or exercise no such control or right of inspection, from time to time, of the sleeping-cars which it used in conveying passengers, as it should exercise over its own cars- it was chargeable with negligence or failure of duty. The law will conclusively presume that the conductor and porter assigned by the Pullman Palace Car Company to the control of the interior arrangements of the sleeping-car in which Roy was riding when injured, exercised such control with the assent of the railroad company. For the purposes of the contract under which the railroad company undertook to carry Roy over its line, and in view of its obligation to use only cars that were adequate for safe conveyance, the sleeping-car company, its conductor and porter were in law the servants and employees of the railroad company. Their negligence, or the negligence of either of them, as to any matters involving the safety or security of passengers while being conveyed, was the negligence of the railroad company. The law will not permit a railroad company engaged in the business of carrying persons for hire, through any device or arrangement with a sleeping-car company, whose cars are used by and constitute a part of the train of the railroad company, to throw off the duty of providing proper means for the safe conveyance of those whom it has agreed to convey. 2 Kent's Com. (12th ed.) 600; 2 Pars. on Cont. (6th ed.) 218-19; Story on Bail., §§ 601, 601a, 602; Cooley on Torts, 642; Wharton's Neg. (2d ed.), § 627, et seq.; Chitty on Carriers, s. p. 256, et seq., and cases cited by the authors.

It is also an immaterial circumstance that Roy, when injured, was not sitting in the particular sleeping-car to which he had been originally assigned. His right, for a time, to occupy a seat in the car in which his friend was riding, was not, and under the facts disclosed, could not be questioned.

Whether the Pullman Palace Car Company is not also and equally liable to the defendant in error, or whether it may not be liable over to the railroad company for any damages which the latter may be required to pay on account of the injury complained of, are questions which need not be here considered. That corporation was dismissed from the case, and it is not necessary or proper that we should now determine any question between it and others.

2. Upon the trial below the plaintiff was allowed, against the objection of defendant, to make proof as to his financial condition, and to show that after being injured, his sources of income were very limited.

This evidence was obviously irrelevant. The plaintiff, in view of the pleadings and evidence, was entitled to compensation and nothing more for such damages as he had sustained in consequence of injuries received. But the damages were not in law dependent in the slightest degree upon his condition as to wealth or poverty. It is manifest, however, from the record, that the learned judge who presided at the trial subsequently recognized the error committed in the admission of that testimony. After charging the jury that the measure of plaintiff's damages was the pecuniary loss sustained by him in consequence of the injuries received, and after stating the rules by which such loss should be ascertained, the court proceeded: "But the jury should not take into consideration any evidence touching the plaintiff's pecuniary condition at the time he received the injury, because it is wholly immaterial how much a man may have accumulated up to the time he is injured; the real question being how much his ability to earn money in the future has been impaired."

Notwithstanding this emphatic direction that the

jury should exclude from consideration any evidence in relation to the pecuniary condition of the plaintiff, the contention of the defendant is, that the original error was not thereby cured, and that we should assume that the jury, disregarding the court's peremptory instructions, made the poverty of the plaintiff an element in the assessment of damages. And this, although the record discloses nothing justifying the conclusion that the jury disobeyed the direction of the court. To this position we cannot assent, although we are referred to some adjudged cases which seem to announce the broad proposition that an error in the admission of evidence cannot afterward be corrected by instructions to the jury, so as to cancel the exception taken to its admission. But such a rule would be exceedingly inconvenient in practice, and would often seriously obstruct the course of business in the courts. It cannot be sustained upon principle or by sound reason, and is against the great weight of authority. The charge from the court that the jury should not consider evidence which had been improperly admitted was equivalent to striking it out of the case. The exception to its admission fell when the error was subsequently corrected by instructions too clear and positive to be misunderstood by the jury. The presumption should not be indulged that the jury were too ignorant to comprehend, or were too unmindful of their duty to respect, instructions as to matters peculiarly within the province of the court to determine. It should rather be, so far as this court is concerned, that the jury were influenced in their verdict only by legal evidence. Any other rule would make it necessary in every trial where an error in the admission of proof is committed, of which error the court becomes aware before the final submission of the case to the jury, to suspend the trial, discharge the jury, and commence anew. A rule of practice leading to such results cannot meet with approval.

3. There was, however, an error committed upon the trial, to which exception was duly taken, but which does not seem to have been remedied by any portion of the charge appearing in the bill of exceptions. The plaintiff was permitted, against the objection of the defendant, to give the number and ages of his children -a son ten years of age, and three daughters of the ages, respectively, of fourteen, seventeen and twenty-one. This evidence does not appear to have been withdrawn from the consideration of the jury. It certainly had no legitimate bearing upon any issue in the case. The manifest object of its introduction was to inform the jury that the plaintiff had infant children dependent upon him for support, and consequently, that his injuries involved the comfort of his family. This proof, in connection with the impairment of his ability to earn money, was well calculated to arouse the sympathies of the jury, and to enhance the damages beyond the amount which the law permitted, that is, beyond what was, under all the circumstances, fair and just compensation to the person suing for the injuries received by him. How far the assessment of damages was controlled by this evidence as to tho plaintiff's family it is impossible to determine with absolute certainty; but the reasonable presumption is that it had some influence upon the verdict.

The court, in a manner well calculated to attract the attention of the jury, withdrew from their consideration the evidence touching the financial condition of the plaintiff, but as nothing was said by it touching the evidence as to the ages of his children, they had the right to infer that the proof as to those matters was not withdrawn, and should not be ignored in the assessment of damages.

For this error alone the judgment is reversed, and the cause remanded for a new trial. It is so ordered.