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Citizens Street Railway Company t>. Twiname.

to a passenger, against which prudence and foresight might have guarded, renders a railway company liable. 1 Lacey, supra, 412, paragraphs 100, 101, 102, 103 and 110.

There was, consequently, no error in giving the fourth instruction to the jury so far as it related to the requisite degree of skill and foresight. To constitute a person a common carrier he must hold himself out as such. This may be done either by advertising or by engaging in the business of a common carrier, and the general acceptance of employment incident to such business. Thompson Carriers, supra; Hutchinson, supra, section 48.

Having thus held himself out, he incurs certain obligations of a public or general character which can only be met by a proper discharge of the duties devolving upon him as a common carrier. As a consequence, whenever a quantity of goods, or a passenger, by any of the usual methods, comes into the possession of a common carrier to be transported over his line, he, in the absence of any agreement to the contrary, assumes all the responsibility which the law attaches to the particular class of business which he has thus undertaken to perform. If it be a passenger, he impliedly agrees to exercise the utmost or highest degree of skill and foresight usually employed in his line of business for the safe transportation of such passenger.

When a duly equipped passenger train of cars is placed upon a railway track, under circumstances indicating that it is ready to receive passengers, and that it is about to proceed on its way for the transportation of passengers, an invitation to all suitable persons to enter the cars and to become passengers over its line is thereby implied. This doctrine is in principle well sustained by the authorities. 1 Thompson Neg., 307; Nave v. Flack,'90 Ind. 205 (46 Am. R. 205); Terre Haute, etc., R. R. Co. v. Buck, supra.

Where a person thus enters a railway car for the purpose of becoming a passenger, he has the right, in the absence of Any stipulation or warning to the contrary, to presume that Citizens Street Railway Company v. Twiname.

all the necessary precautions have been taken for his safe transportation, whatever the condition of the track may in iact be. In such a case, the reasonable inference from the implied invitation to so become a passenger is, that all suitable precautions have been taken, and the acceptance of such an invitation can not be held to be contributory negligence. See again Hutchinson, section 516.

It is a matter of common observation that railway tracks are undergoing frequent, and in many cases constant, repairs, and that travel over them is very seldom suspended on account of ordinary repairs; also, that, by an increased vigilance and care, passengers are usually carried safely over the places at which repairs are being made. A railway company is guilty of negligence when it attempts to run its train of cars over a torn up or palpably defective place in its track, when, by the use of such increased vigilance and care as are practicably available, the safety of its passengers is not well assured, and, for the reasons already given, the same rule is applicable to the management of street railway lines of cars. Our conclusion, therefore, is that the eighth instruction, as applicable to certain features of the evidence in this case, stated the law correctly. Construing both instructions together we see no substantial cause for criticism, much less of •oom plaint.

But the point is also made that the court erred in the concluding part of its fourth instruction in limiting what ought ■to be considered as contributory negligence to such negligence as may have directly and materially contributed to the infliction of the injuries complained of. This point is based upon the alleged ground that so high a degree of contributory negligence is not required to defeat an action like the one under consideration.

Beach, in his work on Contributory Negligence, at page 7, says: "Contributory negligence, in its legal signification, is Vol. 111.—38

Citizens Street Railway Company t>. Twiname.

such an act or omission on the part of a plaintiff, amounting to a want of ordinary care, as, concurring or co-operating with the negligent act of the defendant, is a proximate cause or occasion of the injury complained of. To constitute contributory negligence there must be a want of ordinary care on the part of the plaintiff, and a proximate connection between that and the injury."

To make such a want of care a proximate cause of an injury, it must, according to this well considered definition, contribute directly and materially to the infliction of the injury. To constitute it a proximate cause it must, in the nature of things, have some direct and material relation to the injury, and such has been our construction as to the degree of contributory negligence necessary to defeat an action like this. Toledo, etc., R. W. Co. v. Goddard, 25 Ind. 185; Pennsylvania Co. v. Sinclair, 62 Ind. 301 (.30 Am. R. 185); Nave v. Flack, supra.

As has been stated, there was evidence tending to show that, after the street car ran off the first time, an employee of the Street Railway Company warned the plaintiff not to reenter the car until after it had passed another point of danger in the immediate vicinity. There was further evidence tending to prove that the plaintiff replied that she had paid her fare and would take the risk. It is insisted, therefore, that the verdict was not sustained by sufficient evidence.

In the first place, conceding that the plaintiff replied as stated, her agreement to take the risk was not made until the contract for her safe transportation had already been broken. In the next place, the witness who testified to having warned the plaintiff, as well as to her reply, was flatly contradicted by other witnesses, thus presenting a case of conflict in the evidence to be passed upon by the jury, and which we can not review. In the third place, when an agreement on the part of the plaintiff to take the risk is relied upon as a defence in the class of actions to which this belongs, the agreeRudicel v. The State.

ment must be specially pleaded. Louisville, etc., R. R. Co. v. Orr, 84 Ind. 50; Pfaffenberger v. Platter, 98 Ind. 121.

The judgment is affirmed, with costs.

Filed Sept. 27, 1887.

1111 596

No. 13,853.

Rudicel V. The State. %

Criminal Law. Forgery.Character of Instrurmnt. — An instrument to which the accused intended to forge the name of "William R. Stephens," but instead of so writing it wrote the name " Bill Stevens," if perfect in form, is calculated to deceive, and will support an indictment for forgery.

From the Huntington Circuit Court.

B. F. I bach, J. G. I bach, J. C. Br any an, M. L. Spencer and W. A. Branyan, for appellant.

L. T* Michener, Attorney General, and J. H. Gillett, for the State.

Elliott, J.—Counsel say that "A single proposition is urged for the reversal of this cause; that is, was the instrument forged such an one as would deceive or was calculated to deceive any one?"

Their contention is, as we understand them, that, as the appellant intended to defraud by forgjng the name of William R. Stephens, and instead of writing that name wrote the name "Bill Stevens," no case is made out, because the instrument was not such as would deceive any person. We can not assent to this doctrine. It is true that the forged instrument must on its face appear to be one of some legal efficacy, but it is sufficient if the legal validity be apparent and not actual. It is only where the instrument appears as matter of law to be void that the accused can escape. Mr. Rudioel v. The State.

Bishop thus states the law: "Since men are not legally presumed to know facts, a false instrument which is good on its face may be legally capable of effecting a fraud, though inquiry into extrinsic facts should show it to be invalid even if it were genuine." 2 Bishop Crim. Law, section 541. In this instance the note was perfect in form, and it is only by inquiry into extrinsic facts that it can be ascertained that it will not bind the person whose-note the accused represented it to be. If the note had been sued on, and it had been aiverred that William R. Stephens had executed it under the style of "Bill Stevens," he, as defendant, would have been •compelled to defend by way of answer, and an inquiry into extrinsic facts would have been necessary to determine the validity of the note, so that it is obvious that the validity of the instrument could not have beeti determined from a mere inspection. If the note had been bought by the person to whom it was offered as the note of the man William R. Stephens, he, had he believed the representations of the accused, would have been defrauded, because the validity of the note was not disclosed as matter of law, but depended upon extrinsic facts. It is not the character of the signature that determines, as matter of law, the validity of a promissory note perfect in form and substance, for, if the note is signed, the manner of signing does not necessarily impair its force. It is not necessary that the prosecution should show that the instrument was in due legal form; it is sufficient if it be shown that it so resembles a valid promissory note as renders it likely to deceive a purchaser. Garmire v. State, 104 Ind. 444; Rollins v. Slate, 22 Texas App. 548 (58 Am. Rep. 659).

Where the accused intends to forge the name of a person, •dad attempts to utter the note as that of the person whose name he intended to forge, he is guilty of the crime of forgery, and will not be allowed to escape punishment on the ground of an error or omission in writing the forged signature. Powers v. State, 87 Ind. 97.

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