(B.) STATUTES OF THE STATES AND TERRITORIES.

345 Philippines.

CASES ADJUDGED

IN THE

SUPREME COURT OF THE UNITED STATES

AT

OCTOBER TERM, 1908.

ATCHISON, TOPEKA, AND SANTA FE RAILWAY COMPANY v. CALHOUN.

ERROR TO AND APPEAL FROM THE SUPREME COURT OF THE

TERRITORY OF OKLAHOMA.

No. 71. Argued January 12, 13, 1909.--Decided February 23, 1909.

Although defendant may have been originally in fault, an entirely independent and unrelated cause subsequently intervening, and of itself sufficient to have caused the mischief, may properly be regarded as the proximate cause of plaintiff's injuries. Insurance Co. v. Tweed, 7 Wall. 44.

An unsuccessful attempt to replace a child on a railroad car held, in this case, to be the proximate cause of injury to the child notwithstanding such attempt was made as the result of the child's mother having been prevented from getting off the car by the negligence of the railway employés.

Failure to foresee and provide against extraordinary and unreasonable risks taken by other persons cannot be regarded as negligence, and so held that a railroad company was not liable for negligence to one who, in a reckless effort to run after and board a rapidly moving train, stumbled on a truck which had been left by an employé at a place where ordinarily no passengers got on or off the cars. 18 Oklahoma, 75, reversed.

THE facts are stated in the opinion.

VOL. CCXIII-1

1

Argument for Defendant in Error.

213 U. S.

Mr. Robert Dunlap, with whom Mr. Henry E. Asp, Mr. Charles H. Woods and Mr. George M. Green were on the brief, for plaintiff in error:

For the plaintiff to recover, the negligence of the railway company must have been the direct and proximate cause of the injury. A proximate cause in the law of negligence is such a cause as operates to produce particular consequences without the intervention of an independent, unforeseen cause, without which the injury would not have occurred.

If subsequent to the original wrongful or negligent act, a new cause has intervened of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote. 1 Thompson on Negligence, § 55; Galveston &c. Ry. Co. v. Chambers, 11 S. W. Rep. 279; Glassey v. Worcester Consolidated Street Ry. Co., 70 N. E. Rep. 199; Herr et ux. v. City of Lebanon, 24 Atl. Rep. 207; Shaeffer v. Township of Jackson, 24 Atl. Rep. 629; Texas & P. Ry. Co. v. Beckwith, 32 S. W. Rep. 347; Cleghorn v. Thompson, 64 Pac. Rep. 605; Mo. Pac. Ry. Co. v. Columbia, 69 Pac. Rep. 338; Frassi v. McDonald, 55 Pac. Rep. 139; Lewis v. Flint & P. M. Ry. Co., 19 N. W. Rep. 744; Claypool v. Wigmore, 71 N. E. Rep. 509; B. & O. R. R. Co. v. Trainor, 33 Maryland, 542; Hoag & Alger v. L. S. & M. S. R. Co., 85 Pa. St. 293; Cuff v. N. & N. Y. R. Co., 35 N. J. L. 18; N. Y., C. & St. L. Ry. Co. v. Perriguey, 138 Indiana, 414; Alexander v. Newcastle, 115 Indiana, 51; McGahan v. Indianapolis Natural Gas Co., 37 N. E. Rep. 601.

Mr. Selwyn Douglas and Mr. Henry H. Howard, for defendant in error, submitted:

A railroad company must give a passenger a reasonable time to alight at the end of his journey. Railroad Co. v. Mullen, 75 N. E. Rep. 474; S. C., 217 Illinois, 203. It is pleaded, established by the evidence and found by the jury that the plaintiff in error was negligent in this respect.

It is the duty of a railroad company to furnish passengers a safe place to alight. Harris v. Railway Co., 70 N. E. Rep. 407.

This duty is one of law, and does not necessarily depend upon the rules of the company, but upon the circumstances, and the character and extent of the business done at the place. Railway Co. v. Hyde, 101 Fed. Rep. 401; Railway Co. v. Marshall, 81 Pac. Rep. 169.

The injury occurred in a city of the first class under the laws of Oklahoma; plaintiff in error recognized the necessity for lighting the premises, and had lights there for the purpose, which were not on this occasion burning. The dark and dangerous character of the premises is pleaded, established by the evidence and found by the jury.

The relation of carrier and passenger does not terminate when he alights upon the platform, but continues until he has had a reasonable time, under the circumstances of the case, to leave the station. Railway Co. v. Wood, 104 Fed. Rep. 663.

Defendant in error did not have a reasonable time within which to leave the premises. The peril of his position would have been increased had he attempted to do so, and an effort on his part could not have been an intelligent one. He was, consequently, as much a passenger as before he left the car, and the same duty was due him. That a child and parent will become separated in the confusion of travel, or through the negligence of the servants of the carrier, is one of the most natural and probable incidents of the business, and not only ought to be but is at all times foreseen. And that when they are separated, particularly under dangerous circumstances, or such as will distress the parent, the first humane person discovering the fact will undertake to bring them together again, is equally natural, probable and easily foreseen.

Cases cited by plaintiff in error can be distinguished from the case at bar.

MR. JUSTICE MOODY delivered the opinion of the court.

The defendant in error, hereafter called the plaintiff, brought an action in a District Court of the Territory of Oklahoma