evidence is to the effect that the bartender not only knew of these two cases of brutality, but furnished the alcohol which the cook used. The evidence does not establish the contributory negli gence of the plaintiff as a matter of law. The verdict is sustained by the evidence. Order affirmed. It is the Duty of the Proprietor of a saloon or tavern to see that his patrons are protected from the wrongdoing of those in his employ and those whom he chooses to harbor. And he is liable for injuries sustained by one who comes into his place and becomes intoxicated, by reason of another, who also becomes intoxicated there, and who, in view of the proprietor, attaches a piece of paper to the former and sets it on fire: Rommel v. Schambacher, 120 Pa. St. 579, 6 Am. St. Rep. 732, 11 Atl. 779. See, also, Mastad v. Swedish Brethren, 83 Minn. 40, 85 N. W. 915, 85 Am. St. Rep. 446, and monographic note. FEWINGS v. MENDENHALL. CARRIERS-Duty to Passengers-Protection Against Strikers. A carrier of passengers is not required to exercise the utmost care and vigilance to protect them from the criminal acts of strikers and strangers, not under its control nor subject to its orders. As to the acts of such persons, carriers of passengers are liable for the exercise of ordinary care and prudence only. (p. 524.) CARRIERS Protection of Passengers Against Strikers.-A carrier of passengers is charged with ordinary care and prudence only to guard them against the lawless acts of strikers and strangers not under its direction or control, and its failure to pull down the blinds of the car in which a passenger is riding or to stretch a heavy canvas over the windows of the car as a protection against such lawless acts, is not negligence for which a recovery can be had for personal injuries received. (p. 524.) CARRIERS-Protection of Passengers Against Strikers.-A carrier of passengers attempting to operate its cars during a strike of its employés is not guilty of negligence in failing to notify its passenger of the violent conduct of such strikers and their sympathizers, over whom he has no direction or control. (p. 525.) Green & Wood, for the appellant. J. Jenswold, Jr., for the respondent. 338 BROWN, J. Action to recover damages for personal injuries alleged to have been occasioned by the negligence of defendant. Plaintiff had a verdict in the court below, and de fendant appealed from an order denying his motion for judgment notwithstanding the verdict or for a new trial. The case was here on a former appeal: Fewings v. Mendenhall, 83 Minn. 237, 86 N. W. 96. The facts are there fully stated, but for an understanding of the questions presented at this time, a restatement is necessary; but in doing so we follow substantially the statement there made. Defendant, as receiver of the Duluth Street Railway Company, has operated its street-car system since July, 1898. On May 2, 1899, a general strike was inaugurated by the employés of the company, which was maintained until after the plaintiff was injured as hereinafter stated. Defendant procured other men to take the place of the strikers, and continued to operate the street-car lines. On Sunday evening, May 7th, plaintiff took passage in a car operated by defendant, at Superior, in the state of Wisconsin, for Duluth. While the car was going northerly along Garfield avenue in Duluth, and as it approached Michigan street, a young man, not in any way connected with the company as an employé or otherwise, not a passenger, nor in any way under the control or direction of defendant, threw a stone at the car in which plaintiff was so riding, which passed through the window thereof, and struck plaintiff on the head, whereby he was seriously injured. He brought this action to recover damages because of such injury, basing his claim to a right of recovery on the alleged negligence of defendant in failing to take proper precautions to prevent injuries from acts of this kind. The complaint alleges, among other things, that plaintiff, as a passenger, was exposed to imminent danger by reason of the violent and unlawful acts of the strikers and their sympathizers; and that defendant, in the exercise of due care and prudence, could have prevented the same and protected plaintiff and the other passengers in the car from injury; but, notwithstanding this, that he carelessly failed and omitted to warn the plaintiff of any danger, or to make any effort or take any precautions to prevent 339 injury to him, or to provide or make use of any barriers or other means to avert injury resulting from acts of the kind complained of. It was held on the former appeal that defendant was not guilty of negligence in attempting to operate the cars during the strike, and that the trial court erred in submitting that question to the jury. The cause was remanded, and again tried, resulting in a finding by the jury that defendant was guilty of negligence in failing to take proper precautions to avert and prevent accidents of the kind complained of, and returned a verdict for plaintiff for the sum of ten thousand three hundred and eighty-three dollars and thirty-three cents. The principal question presented for consideration at this time is whether the evidence is sufficient to sustain a finding of actionable negligence against defendant. Other questions are discussed in the briefs of counsel, but the evidence upon this question appears to be substantially the same as on the former trial, and it is due to the parties that the question be now met and determined, that the litigation may be brought to an end, and further expense obviated. In the consideration of this question it is proper to inquire first the degree of care required of defendant under circumstances like those shown, for in determining whether he was guilty of negligence which was the proximate cause of plaintiff's injury we must be guided by the rules of duty and care necessary to be exercised in such cases. Though no exceptions were taken to the charge of the trial court, wherein the jury was instructed that defendant was charged with the highest degree of care and foresight for the protection of plaintiff while a passenger, the question is properly presented by the errors assigned on the motion for a new trial and by the assignments of error in this court. The strike which the employés of the street railway company inaugurated was bitterly and stubbornly contested, and resulted in much lawlessness and acts of violence on the part of the strikers and their sympathizers toward the property of the company, with the purpose in view of preventing the operation of the cars and forcing a submission to their terms. The act which resulted in plaintiff's injury was not committed by an employé, a fellowpassenger, or by one having any connection or relation whatever 340 with the company, but by a boy who was in no way under the control of the company or any of its agents. He was a sympathizer with the strikers, and by his act of lawlessness no doubt thought he was aiding their cause. The question as to the extent of responsibility of a carrier of passengers and the degree of care essential to be exercised for their protection as to acts committed by strangers to the carrier has never, prior to this case, been presented to this court for its decision. The general rule that such carrier is required to exercise the highest degree of care and foresight consistent with the orderly conduct of its business is one that has very uniformly been applied by all the courts in cases where the act or omission complained of as negligence was in respect to a matter under the control of the carrier. A carrier of passengers is required to ex ercise the highest care in respect to the equipment of its road and transportation facilities, in providing suitable machinery for the operation of its cars, in the employment of competent and faithful servants and agents, and generally, as to all acts pertaining in any way to the conduct of its affairs in furtherance of its undertaking as a carrier; and in respect to such matters the rule has always been very strict. It is insisted by plaintiff that the rule applies to this case, and that it was the duty of defendant, in view of the condition surrounding the strike, to exercise the utmost care and vigilance to guard and protect plaintiff, while a passenger, from acts of violence at the hands of persons, whether under the control of defendant or not, and from dangers from whatever source arising. It is insisted that the act of the boy who threw the stone in question was such as the defendant might, from the circumstances and conditions of the strike, reasonably have anticipated, and could have guarded against and prevented. We have been cited to no case where the high degree of care essential as to matters within the control of the carrier has been extended and applied with all its force and strictness to acts of persons beyond its control, and for which it was in no way responsible, directly or indirectly. Some cases cited and relied upon by plaintiff do not sustain his position. 341 Exton v. Central, 62 N. J. L. 7, 42 Atl. 486, was a case where the company had permitted hackmen to occupy its premises in soliciting trade, and a passenger was injured by their misconduct. The company was held liable; but the decision is placed upon the ground that the company had the right to control its depot grounds and buildings, and, as it permitted hackmen to occupy the same, was responsible to passengers for injuries resulting from their misconduct, if it failed to exercise proper care to protect them. Wright v. Chicago, 4 Colo. App. 102, 35 Pac. 196, was a case where the company permitted disorderly persons to become and remain passengers, and is not in point. It was the clear duty of the company in that case to exercise the highest care to prevent injury to passengers from the acts of disorderly passengers, and the strict rule was clearly applicable to the facts there shown. It is well settled that a carrier of passengers is bound to exercise the utmost care to maintain order and guard and protect passengers from violence and insult at the hands of fellow-passengers, from such injury and insult as might reasonably have been anticipated or naturally expected to occur, in view of all the circumstances and the number and character of passengers on board: Lucy v. Chicago Great Western Ry. Co., 64 Minn. 7, 65 N. W. 944; Mullan v. Wisconsin Cent. Co., 46 Minn. 474, 49 N. W, 249. The rule is founded upon the fact that the company has control of its cars and premises, a police supervision to prevent violations of the law, and may lawfully eject and remove disorderly persons therefrom, or arrest or otherwise suppress and control them. In Savannah v. Boyle, 115 Ga. 836, 42 S. E. 242, the employés of the company had taken two tramps, who were concealed about the train, and trespassers thereon, and placed them in the expresscar, tying them there with a rope about their wrists. During their struggle to escape, one of them shot the express agent in charge of the car. The general principle of law was applied, and it was held that it was the duty of the railway company to protect its passengers from insult or injury at the hands of a fellowpassenger, or third person, when the circumstances are such that a person in the exercise of that degree of diligence known to the 342 law as extraordinary care would see and apprehend that the passenger was in danger of injury. It was accordingly held that, as the company had placed the tramps in the car, and assumed charge and control of them, the strict rule of care essential in such cases applied, and protected the express agent to the same extent as a passenger. Empire Transp. Co. v. Philadelphia etc. Iron Co., 23 C. C. A. 564, 77 Fed. 919, and Haas v. Kansas City etc. R. R. Co., 81 Ga. 792, 7 S. E. 629, were cases involving the liability of carriers of freight, and are not in point, for a different rule of responsibility exists as to such carriers. In respect to goods a carrier is an insurer for the safe transportation and delivery of the property intrusted to it for carriage, and is relieved from liability only by the act of God or the public enemy. A carrier of passengers is not an insurer of their safety, and is liable to them for such injuries as result from its failure to exercise proper care for their protection. A number of other cases are cited and relied upon by counsel, wherein the general rule is stated substantially as contended for by him, namely, that a carrier of passengers is required to exercise the utmost vigilance to protect passengers from insult and injury from whatever cause arising; but an examination of them shows that they are all cases where the carrier had permitted third persons to enter upon its premises or cars, and thereafter failed to exercise proper degree of care to restrain them from acts of lawlessness; and there can be no question as to their soundness. |