Was the plaintiff negligent because, being absent, he intrusted the original note to an agent, to surrender it, and to receive a new note in its place? The employment of agents and attorneys to take, renew, negotiate and collect notes is one of the most common affairs of business. I am not willing to establish the principle in this Territory, that one who intrusts a note with another, to be collected, negotiated, delivered up on receipt of a new and satisfactory obligation, shall lose all remedy if the agent, either by mistake or of his wrong, exceeds his authority, and without the owner's knowledge or consent or ratification interlines or erases the paper, so as to materially change it. The rule, in my judgment, is that the holder may be made to lose his right if he himself alters the note, or procures it to be done, or in any way authorizes the act, but not if it is without his knowledge or authority. this note cannot be inferred. It could not have injured. Shall it be said this original note in been within the contemplation of either the prin- the case under consideration must be treated as cipal or agent at the time of the creation of the destroyed, satisfied, as having no force or effect agency. Consequently the act must be regard- in law or equity, to prevent other persons from ed as done by a stranger, without the concur- changing other notes, as a matter of public rence, express or implied, of the plaintiff. The policy? If so, the answer is clear. The estab question is, Will an alteration made by a lishment of such a rule will rather encourage stranger vitiate the note? It will be observed the destruction of written instruments by interthat the rule as stated by Lord Coke in the lineation or erasure than the contrary. Such a case cited from his Reports, answers this in- principle would stand as a constant inducequiry in the affirmative, and that seems to be, ment to such changes. Persons would be thereafter some fluctuation of sentiment, the present by tempted surreptitiously in many ways to prevailing opinion in the English courts. But procure the alteration of the paper as the easiest the doctrine rests, I think, rather on ancient mode of discharge therefrom. dicta than on actual ancient decisions, and the American rule, and with much better reason, appears to be entirely the other way. Prof. Parsons treats the rule as completely settled in this country that a material alteration by a stranger will not render an instrument void, if it can be shown by evidence what the language was as it originally stood. 2 Parsons, Cont. 223, note 9, where the cases on the subject will be found collected. As the common law, in its ancient form, cannot be said to have been so settled on this point as to be imperative on this court, we are at liberty to follow either the modern English or American rule, and I have already said the latter seems preferable. The only ground I have found suggested in support of the new stringent rule is this: that a paper cannot be altered by a stranger without laches on the part of the holder of it. But this is an assumption which has no foundation in fact. A man is not always remiss who trusts his paper with another. Many of them, everyone knows, must be constantly passing from hand to hand. Under such circumstances, the imputation of laches is utterly misplaced. Nor does there appear any necessity, arising from considerations of public policy, for the enforcement of so severe a rule. Strangers having no interest in an instrument are under no great temptation to corrupt it, and it is therefore an evil which will not often occur, while the injustice of concealing a written contract, without fault in the party holding it, is so flagrant that it should require the strongest reasons for the law to imply it. Adopting, then, the rule recognized by the courts in this country, and applying it to this case, the result is that this verdict founded on the note in question must stand, as the note was not altered by the plaintiff, nor with his consent, and as the act of a stranger could not deprive it of its legal force." The case which has been so fully quoted is in my mind absolutely conclusive on the rights of the plaintiff, Frank Ruby, in this case. It is pertinent to inquire, What has Ruby done that his right of action on the original note should be taken from him? Wood v. Steele, 73 U. S. 6 Wall. 80 [18 L. ed. 725], was an action on a note which had been changed without the consent of the surety in its changed and new form. As so changed without surety's consent, it was not, as sued upon, his promise, and of course recovery thereon could not be had at law. So here, if Talbott is sued on the note as changed in its new form, if he did not consent to it, was no party to it, it would not in such form be his promise, and he would defeat a recovery; so he has not been In Angle v. Northwestern Mutual Life Insurance Company, 92 U. S. 330 [23 L. ed. 556], Mr. Justice Clifford, in delivering the opinion of the court, said: "Persons dealing with an agent are entitled to the same protection as if dealing with the principal, to the extent that the agent acts within the scope of his authority. Pursuant to that settled rule of law, it is settled that where a party to a negotiable instrument intrusts it to another for use as such, with blanks not filled up, such instrument so delivered carries on its face an implied authority to complete the same by filling the blanks... but he may not make a new instrument by erasing what is written or printed, or by filling the blanks with a stipulation repugnant to the plainly expressed intention of the same, as shown by its printed terms." It seems to me, if the act is wrongful, outside of authority, it clearly should not bind or in any way affect the parties to the note. It cer tainly is a harsh rule to hold that a mere cus todian of paper may without right, against his instructions, without the payment of a dollar by the surety, without imposing on him a new obligation or hardship, release a maker from liability, by running the pencil or pen through a material word or line in the instrument. If that is the state of the law, it is an easy way to pay debts. It may, however, be contended that the original note was avoided because of the averments showing the act of one of the makers with respect to the change. A reference to the bill discloses that it is charged that Randall and Borrodaile, or one of them, while the note was so in the possession of Armijo Bros. & Borrodaile, without authority, made the changes de scribed in the bill. It nowhere appears that Randall had possession or custody of the note by Ruby's direction or consent. to the custody of Randall, on condition that a new obligation in different form should be made. If this note were in Randall's hands, pending the payment of the money, before the completion of the transaction for delivery to Talbott on payment of the money, and while so in his hands Randall altered the same, it may be a different rule would apply; but after the transaction was complete, the note delivered to Talbott, and the liability of all parties to it fixed, under the averments of the bill, I believe that Randall should be regarded as a stranger, and that neither his alteration of the note, nor the unauthorized change in its terms, could destroy the plaintiff's right of action on the origi The contract was completed and liability fixed when the note was delivered to Ruby. After that Randall had no right to its custody, except on payment by him. It was then a completed transaction. He had made delivery. Suppose, after that, he had requested of Ruby a moment's inspection of the note, and while having it so in his custody Randall had stricken out or written in material words, without the knowledge or consent of Ruby. Would such an act release Talbott, the other maker? If so, all an accommodation maker need do, to pay his obligation or to discharge his debt, is to pro-ual instrument. cure the maker to ask of the holder an examination of the paper, which in the trust usually pertaining to business transactions would be granted, and then, while making such examination, to strike out any material word, or write in one, and in a moment thereby the obligation, "in the twinkling of an eye," is paid, discharged, gone. The mere statement of such a proposition would seem to carry its own refutation. How, under the allegations of the bill, does Randall stand differently towards the note? What right had he to the possession of the note? Ruby did not intrust it to him. He did not instruct or authorize Armijo Bros. or Borrodaile to do so, or to even allow Randall the custody of or inspection of it, but only to surrender it The complainant was careful not to aver he did not have a right of action on the note in its original form, but he did aver that upon advice of his counsel he believed he had no right of action on the note in its new and altered form. That he did not have such right of action is apparent, but I believe he has a right of action on the original note, if the averments of the bill are true, and he did not afterwards ratify the act which he imputes to Borrodaile or Randall in changing the note, notwithstanding the alteration; and for that reason he has an adequate remedy at law, and did not need the aid of a court of equity to restore the note. On that ground the action of the court below in sustaining the demurrer, it seems to me, should be sustained. NOTE.-Undertaking of carrier to protect passenger | passenger a trespasser. Young v. Pa. R. Co. 5 from violence and abuse of its servants. A common carrier of passengers undertakes absolutely to protect them against the misconduct of its own servants engaged in executing the contract. N. J. Steamboat Co. v. Brockett, 121 U. S. 637 (30 L. ed. 1049). Passenger as trespasser. A passenger has no right on a train which, under a rule of the company, does not stop at the station for which he bought the ticket. In such case he cannot recover damages except for needless violence. Chicago, St. L. & P. R. Co. v. Bills, 1 West. Rep. 848, 104 Ind. 13. But ignorance of regulations may excuse his acts done in violation of regulations unknown to him, so as not to constitute him a trespasser. Lake Shore & M. S. R. Co. v. Rosenzweig, 4 Cent. Rep. 712, 113 Pa. 519. So a passenger who enters a car by mistake is not a trespasser; and while the railway company may eject him, it must not put him off at an improper place. Lake Shore & M. S. R. Co. v. Rosenzweig, supra. That the agent made a mistake or violated the instructions of his principals will not make the Cent. Rep. 848, 115 Pa. 112. A conductor is guilty of assault and battery for forcibly ejecting a passenger, without stopping the train, although the passenger was wrongfully thereon. State v. Kinney, 34 Minn. 311. Even a trespasser cannot be ejected from a train without a reasonable regard for his safety. Arnold v. Pa. R. Co. 6 Cent. Rep. 632, 115 Pa. 135. Expulsion of passenger from train. A passenger may lawfully be ejected from a train for disorderly conduct or for refusal to conform to the reasonable regulations of the company. See Sullivan v. Old Colony R. Co. 1 L. R. A. 513, note. Misconduct and evading payment of fare distinguished. Ibid. An attempt to evade the payment of fare need not be fraudulent, to warrant ejecting or removing a passenger. Marshall v. Boston & A. R. Co. 5 New Eng. Rep. 172, 145 Mass. 164. The Public Statutes of Massachusetts, chapter 112, § 197, do not prohibit a carrier from putting a passenger, refusing to pay fare, off the train at a regular passenger station, without arresting him. case, and it is the duty of the jury in their verdict to conform thereto; but if they fail to do so it is the duty of the court to set aside the verdict. (January 18, 1889.) 2. The question as to whether a contract 6. The court charges upon the law of the or agreement entered into between the railroad company and a line of steamers plying between Jacksonville and Sanford was entered into in good faith, and was legal and binding, or that such contract constituted an oppressive monopoly, and hence was not legal and binding, is a mixed question of law and fact; and it was properly left to the jury to be passed upon by them. 3. The reasonableness of a rule prescribed by a railroad company for the government of its business is purely a question of law to be decided by the court, and not a question of fact to be passed upon by juries. 4. A rule adopted by a railroad company, which inhibited passengers on their trains from wearing the uniform cap of a line of steamers running in opposition to a line of steamers run ning in connection with the company, was not reasonable, and hence not binding on the public. 5. The statute (section 41, chap. 1987, Laws Florida) prohibits the expulsion of a passenger by a railroad company for nonpayment of fare at any point other than a usual stopping place, or near some dwelling house. When, however, a passenger wantonly violates any other reasonable rule of a railroad company, the obligation to transport him ceases, and the company may expel him from the train at any convenient and safe point that may be selected by the officer in charge, no more force being used than may be necessary for such purpose. This is a common-law right, and has not been restricted by statute as in cases of nonpay ment of fare. Beckwith v. Cheshire R. Co. 3 New Eng. Rep. 186, APPEAL by defendant, from an order of the The facts are fully stated in the opinion. The contract entered into by the appellant with the People's and De Bary lines of steamers was legal; it contravened no law of the State, and was not contrary to public policy. Rorer, Railroads, pp. 228, 229; Green's Brice, Ultra Vires, note a. 415; Atchison, T. & S. F. R. Co. v. Denver & N. O. R. Co. 110 U. S. 667 (28 L. ed. 291); Jencks v. Coleman, 2 Sumn. 221; Stewart v. Erie & W. Transp. Co. 17 Minn. 372; Sussex R. Co. v. Morris & E. R. Co. 19 N. J. Eq. 13, 20 N. J. Eq. 542. A rule or regulation prescribed by a railroad company, inhibiting the wearing of a badge, or other insignia of rank, of a line or lines of other carriers competing with such railroad or its legal connections, as well as regulations prohibiting drumming for passengers for such the jury. Arnold v. Pa. R. Co. 6 Cent. Rep. 630, 115 Pa. 135. It is the conductor's duty, until the contrary is proven, to accept as true the statements of a passenger that he had paid his fare, and as to the amount he paid, to the agent of the company who gave him the ticket he presented and told him it was good, no matter what the ticket contained in words, figures or other marks. Hufford v. Grand Rapids & I. R. Co. (Mich.) 7 West. Rep. 859. In determining whether a conductor on a railSee Dilling-way acted in reckless disregard of the rights of a passenger, the jury may consider that in ejecting the passenger the conductor violated an express rule of the company, calculated to promote the safety of passengers. Lake Shore & M. S. R. Co. v. Rosenzweig, 4 Cent. Rep. 712, 113 Pa. 519. What constitutes ejection. Where a party on a train is explicitly informed by the conductor that he cannot retain his seat and must leave the car, he then knows that he cannot proceed longer upon the train; but he must leave and resort to his legal remedy, the same as though he had been ejected. Southern Kansas R. Co. v. Hinsdale, 38 Kan. 507. He cannot make continuance of process of expulsion unlawful by offer to pay during its progress. Pease v. Delaware, L. & W. R. Co. 2 Cent. Rep. 423, 101 N. Y. 367. A passenger about to be wrongfully expelled from a railroad train need not require force to be exerted to secure his rights or increase his damages. For any breach of contract or gross negligence on the part of the conductor or other employés of the railroad company, redress must be sought in the courts, rather than by the strong arm of the person who thinks himself about to be deprived of his rights. Southern Kan. R. Co. v. Rice. 38 Kan. 398; Atchison, T. & S. F. R. Co. v. Gants, 38 Kan. 608. Duty of conductor in case of expelling passenger. The duty of a conductor in expelling a man from a railway train for nonpayment of fare is not so strictly defined as to remove its determination from Where one purchases a ticket of a railroad company's agent at its office, he has a right to rely upon the agent to give him a ticket expressive of the contract to be carried within the time contracted for. McGinnis v. Mo. Pac. R. Co. 4 West. Rep. 797, 21 Mo. App. 399. While a regulation of the company requiring conductors to reject tickets appearing to be altered may be reasonable and the conductor be justified. yet if the appearance of the ticket was due to a mistake of the ticket agent, the company will be liable for the refusal of the conductor to allow the passenger to travel. Ibid. The conductor of a railway passenger train cannot immediately expel a passenger, except in case of absolute refusal to produce a ticket or pay fare. He must allow a reasonable time for a passenger to produce ticket or money. What constitutes reasonable time is for a jury to determine according to the circumstances. International & G. N. R. Co. v. Wilkes, 68 Tex. 617. A passenger who by direction of the ticket agent at a railroad station from which he had purchased a ticket, gets on board a train which does not stop at the station to which he is destined, may recover competing lines on its cars, are each reasonable and can be enforced, and the court should not have refused to give instructions to that effect. Jencks v. Coleman, 2 Sumn. 221; Com. v. Power, 7 Met. 596; Hall v. Power, 12 Met. 482; 2 Rorer, Railroads, 979, 980. The reasonableness of a rule is purely a matter of law to be determined by the court. 1 Rorer, Railroads, 227; Chicago & N. W. R. Co. v. Williams, 55 Ill. 186; Louisville, N. & G. S. R. Co. v. Fleming, 14 Lea, 128, 18 Am. & Eng. R. R. Cas. 347: Ill. Cent. R. Co. v. Whittemore, 43 Ill. 420; Tracy v. N. Y. & H. R. Co. 9 Bosw. 396; Greenhood, Public Policy, 527. The court should have given the jury some rule by which they could be guided in making up their verdict with reference to the testimony, and not have left it to them to arbitrarily fix the damages. Morehead v. Adams, 18 Neb. 569; Wasson v. Palmer, 13 Neb. 378. The company is not liable for exemplary damages unless the willful violence of the wrongful act was ordered by the company or acquiesced in afterwards. Rorer, Railroads, 870; Townsend v. N. Y. Cent. & H. R. R. Co. 56 N. Y. 295; Louisville, N. & G. 8. R. Co. v. Guinan, 11 Lea, 98. the actual damages occasioned by the mistake, from the railroad company. Ala. G. S. R. Co. v. Heddleston, 82 Ala. 218. But a person is not entitled to damages for ejection from a street car without unnecessary force or violence, where the ticket presented by him is a transfer ticket intended for use on another line and he himself was mainly in fault in regard to the mistake in such ticket. Carpenter v. Washington & G. R. Co. 121 U. S. 474 (30 L. ed. 1015). Liability for injury by expulsion of passenger. A railroad company will be liable for an injury resulting to an adult riding on a train without paying his fare, and negligently ejected by the conductor. Biddle v. Hestonville, M. & F. Pass. R. Co. 3 Cent. Rep. 404, 112 Pa. 551. A person cannot lawfully be ejected from a railroad train while in motion, so that his being put off would subject him to great peril. Southern Kan. R. Co. v. Rice, 38 Kan. 398. Where a trespasser is ejected from a train, such ejection may be at a place other than a depot or station, provided care is taken not to expose his person to serious injury or danger; but in such an ejection the railroad company is not required to have consideration for the mere conveniences of the wrong doer. Atchison, T. & S. F. R. Co. v. Gants, 38 Kan. 608. Plaintiff in action for wrongful ejection from cars must aver in his complaint that the rules of the company provided that the train on which he took passage should stop at the station named in his ticket. Chicago, St. L. & P. R. Co. v. Bills, 1 West. Rep. 847, 104 Ind. 13. He must show that he was rightfully on the train when ejected. Ibid. Company liable for use of unnecessary force. For unnecessary force in ejecting a passenger the company is liable, although the conductor had the right to remove him. Chicago, St. L. & P. R. Co. v. Bills, 1 West. Rep. 847, 104 Ind. 13. A passenger unprovided with ticket and refusing to pay fare or leave the train may be ejected by agents of the carrier; but if more violence is used than necessary for that purpose, the carrier and its Rhoads' object was to provoke appellant to expel him, so that he could institute an action; hence, he should not have recovered. Cincinnati, H. & D. R. Co. v. Cole, 29 Ohio St. 126; Lake Shore & M. S. R. Co. v. Pierce, 47 Mich. 277. Mr. George U. Walker for appellee. Mitchell, J., delivered the opinion of the court: This cause was tried at the Fall Term Circuit Court, 1885. The jury awarded the plaintiff $5,000 damages. Motion for new trial made and overruled, and the case is before this court upon appeal from the order of the circuit court overruling said motion. The first error assigned is that the court erred in overruling the defendant's demurrer to the plaintiff's declaration. The declaration alleges that on the 25th day of April, 1885, the plaintiff was received by the defendant to be carried as a passenger on its cars from Sanford to Orlando, Orange County, Florida; that the defendant did not and would not carry the plaintiff as such passenger as aforesaid, but, on the contrary, without reasonable and lawful excuse therefor, then and agents are liable for damages. Jardine v. Cornell (N. J.) 12 Cent. Rep. 804. A police officer assisting in ejecting the passenger, at the invitation of the agent of the carrier, is subject to the same rule in regard to excessive violence. Ibid. Although a brakeman, in the absence of express orders, has no authority to eject a passenger from a train, a railroad company will be liable for an injury wantonly inflicted by a brakeman on a passenger traveling on a train on which such brakeman is employed. Wabash R. Co. v. Savage, 6 West. Rep. 298, 110 Ind. 156. to use force in the enforcement of reasonable regAlthough a servant of a carrier may be obliged ulations established by the carrier, the carrier will not be protected if he uses excessive or unnecessary force. N. J. Steamboat Co. v. Brockett, 121 U. S. 637 (30 L. ed. 1049). Facts showing the use of unnecessary force must be averred in an action for damages for such a cause. Chicago, St. L. & P. R. Co. v. Bills, supra. If the conductor used only such force as was necessary to eject plaintiff, although mistaken as to his duty, it is not a case for vindictive damages. Claybrook v. Hannibal & St. J. R. Co. 2 West. Rep. 173, 19 Mo. App. 432. Exemplary damages can only be recovered where the expulsion is characterized by malice, recklessness, rudeness or willful wrong. Forsee v. Alabama G. S. R. Co. 63 Miss. 67. Where the ejection of a passenger by conductor was made in good faith and without malice, damages for humiliation and mortification are erroneous. Claybrook v. Hannibal & St. J. R. Co. supra. there by its agent and servant, the conductor, | all reasonable rules and regulations that will and the train bands of its said train, by force enable them to carry out in good faith the and arms ejected plaintiff therefrom, and left agreement, and can enforce such reasonable him and proceeded on its said journey; where- rules and regulations to the ejection of the viofore the plaintiff was injured in his person and lator of them. These rules and regulations can feelings, and was compelled to travel afoot be made and enforced to carry out a legal and about four miles back to said Sanford, was proper agreement; but they cannot be made to prevented from accomplishing his purpose to enforce an agreement which is entered into for go to Orlando, and was otherwise greatly dam- the purpose of oppressive monopoly. aged. Plaintiff claimed $20,000 damages. Second count: Plaintiff claimed from the defendant the further sum of $20,000 for damages, for that, whereas, heretofore, to wit: the 25th of April, 1885, the plaintiff was a passenger on the railway passenger car of the defendant, and was with force and arms, without just, reasonable or lawful excuse therefor, ejected from the said car and forcibly prevented from returning to the same. The declaration was demurred to, (1) that it is bad in substance in that it does not allege that the plaintiff, at the time it is therein alleged he was put off the defendant's cars, was complying with all the reasonable rules of said defendant; (2) that said declaration does not allege that plaintiff was not violating, or about to violate any reasonable rule of said railroad company; (3) that plaintiff does not allege in his said declaration that the defendant has or usually keeps an office for the transaction of its customary business in the County of Orange. There was no error in overruling the demurrer to plaintiff's declaration. Gould, Pl. 164, 17; 1 Chitty, Pl. 390. The Circuit Judge gave the jury a number of charges, or paragraphs of one charge, all of which, except the last, were excepted to by defeudant. Inter alia, the Judge charged the jury that "Railroad companies, as carriers of persons, are not bound to receive for carriage, or to carry, persons whose purpose whilst traveling on the cars is to interfere with or injure the legitimate business and lawful profits of the company, nor persons who are of known and violently bad character, or persons offensively gross and immoral in their conduct, habits and behavior, or so intoxicated as to be offensive, nor such as will not conform with the reasonable rules and regulations of the company in respect to the carriage of passengers, they being informed thereof or otherwise having knowledge of the same, nor such as refuse to pay their fare, or to procure tickets before entering the train. Such objectionable persons, for the objections aforesaid, may not only be refused admission into the cars of the company if their objectionable conduct, purpose, character or intention be known previous to such admission, but, having been received thereon, may be expelled therefrom on rendering themselves obnoxious to any of such objections-the officer in charge using no more force or offensiveness than becomes necessary to effect such expulsion," etc. "A railroad corporation has the right to enter into an agreement with other lines of travel for the purpose of enhancing its own business, and for the benefit of the public; but it has not the right to enter into such agreement when it is for the purpose of an oppressive monopoly or to the injury of the public. In furtherance of such agreements they have the right to make Should you find from the evidence that it was a bona fide agreement, and not entered into for the purpose of an oppressive monopoly, and that the rules and regulations made to enforce the same are reasonable, and the plaintiff well knew such to be the rules and regulations at the time of bis ejection from the train, and that he was knowingly and willfully violating the same, or that the conductor had, from the facts that occurred to him at the time of the plaintiff's ejection, good reason to apprehend that the plaintiff would violate one of such reasonable rules and regulations, you must find for the defendant. "If, on the other hand, after viewing all the evidence, you believe that rules and regulations were not reasonable; and that the plaintiff did not knowingly violate any reasonable rule or regulation; and that he paid his fare and went upon said train as a passenger and properly demeaned himself and presented his ticket to the conductor, and was ejected by the conductor, and not allowed to go on the train to the destination his ticket called for-you must find for the plaintiff at such sum as you may, from the evidence, find him entitled to It will be seen that the Judge, in this part of his charge, left it to the jury to decide whether the rules and regulations prescribed by the railroad company were reasonable. This was error. The reasonableness of rules prescribed by railroad companies, and like corporations with like powers, is a question of law to be decided by the courts, and not a question of fact to be decided by juries. Louisville, N. & G. S. R. Co. v. Fleming, 14 Lea, 128, 18 Am. & Eng. R. R. Cas. 347; Vedder v. Fellows, 20 N. Y. 126, Maroney v. Old Colony & C. N. R. Co. 106 Mass. 153, 8 Am. Rep. 305; Yorton v. Milwaukee L. S. & W. R. Co. 54 Wis. 234, 41 Am. Rep. 23; Pittsburgh, C. & St. L. R. Co. v. Nuzum, 50 Ind. 141, 19 Am. Rep. 703; Pierce v. Randolph, 12 Tex. 290; Rorer, Railroads, 226, 227; M. Cent. R. Co. v. Whittemore, 43 Ill. 420. In the case of Illinois Central Railroad Company v. Whittemore, supra, the Supreme Court of Illinois says: "The circuit court left it to the jury to say whether the rule was reasonable. This was error. It was proper to admit testimony, as was done; but either with or without this testimony, it was for the court to say whether the regulation was reasonable, and therefore obligatory upon the passengers. The necessity of holding this to be a question of law, and therefore within the province of the court to settle, is apparent from the consideration that it is by so holding that fixed and permanent regulations can be established. If this question is to be left to the juries, one rule would be applied by them today, and another tomorrow. In one trial a railway would be held liable, and in another presenting the same questions, not liable. Neither the companies nor passengers would know their rights or their |