The defendant excepted to the introduction of all the evidence relating to a broken switch rail, and, after its admission, moved to have it struck from the record, which motion was denied and the defendant excepted. It also excepted to the submission by 1. The exceptions state that there was no the court to the jury of the question whethevidence tending to show that the switcher, upon the evidence, the plaintiff had made point was bent or broken, unless the testimony of certain witnesses tended to show it, which must be considered.

2. It is the general rule that evidence of Boulet testified, in substance, as before repairs made after an accident has occurred stated.

of the court to submit the question to the plaintiff went, by direction of the defendant's jury. foreman, White, from the coal chute, a distance of 75 to 100 feet, to the boiler house, to assist in unloading a coal car that stood on track No. 1, called the boiler house track. To reach that building, he went north, crossing tracks Nos. 5, 4, 3, 2, and 1. The car to be unloaded stood near the building-some witnesses said from 12 to 18 inches, others from 18 to 26 inches. The east end of the building and the east end of the car were about on a line. A string of four or five loaded coal cars was standing on track No. 1; the one at the west end then being three or four feet from the car that was to be unloaded. It appeared that this space had generally been kept open, sometimes 15 feet wide, so that the defendant's workmen could pass through as they had occasion to go to the boiler house. It was also used by them in wheeling cinders from the boiler house.

3. The plaintiff could not recover if the accident happened through the negligence of his fellow servant Boulet, unless he was incompetent, and the defendant knew or ought to have known of his incompetency. The plaintiff claimed that Boulet was deaf, and that his deafness would be likely to prevent his hearing the clicking sound caused by the engine in going over a switch. Boulet testified that he did not hear the click when the engine went over the switch, and that the first thing that apprised him that he was on the wrong track was the click of the wheel later as it passed over the frog; that he then looked up, and saw where he was going. If he had heard the switch click, he might have been forewarned and stopped his engine in time to avoid the collision. The defendant's evidence was that Boulet had been in its employ several years; that his deafness did not disqualify him for the performance of his duty, and that he was a competent hostler. Whether upon all the evidence he was competent, and whether, if incompetent, the defendant knew it or ought to have known it, were questions of fact for the jury to decide.

On this occasion the plaintiff and a fellow workman, Boin, passed through this space between the cars, entered the building by a door at its east end, which was the usual place of entrance, opened the windows through which the coal was to be shoveled, and then went out and climbed upon the car at its east end. The plaintiff unloaded the west end and Boin the east end. When it was unloaded, Boin got down over the east end, and went into the boiler house. The plaintiff took his pick and shovel and walked in the car to its east end to go down where he went up. He set his tools down inside the car, climbed up to the platform or shelf, reached back and got his tools, and threw them over upon the ground, and began to descend towards the space between the cars. The plaintiff described the accident as follows: "* * * When I was climbing down, I put my foot on the draw iron to reach down to get onto the brake beam with the other foot to step down, and, just as I had got my foot placed, the engine came along and collided with three or four cars that were in front and shoved them up onto the one that I was getting off from." Further on he testified: "When I got over onto the platform, the shelf, I turned then to step down. ** # * Had my right hand on the brake rod and the other hold of the handle at the end of the car. * * One foot was placed on the draw iron, and the other one I don't know exactly where it was." He testified that he was attempting to put it onto the brake beam, which he said was a foot and a half below the platform and went in under it eight or ten inches-under the end of the car. In answer to questions he testified that the brake rod was pretty near the center of the end of the car, 46 # right on the side of the draw iron"; that what he took hold of was the handle fastened on the end of the car, sometimes called the grab iron; that this handle "was on the

4. It was clearly competent for the plaintiff to prove that there was no lock upon this switch, that until within a year it had been kept locked, and that locks were commonly used by the defendant upon similar switches in that yard. Upon the defendant's theory of the cause of the accident, the jury might have inferred that a lock would have prevented a misplacement of the switch. It was held in Carrow v. Barre R. Co., 74 Vt. 176, 52 Atl. 537, which was an action for Injuries received at a grade crossing, that evidence that there was no flagman at the crossing was admissible as a part of the surrounding circumstances, although the defendant was not bound to keep a flagman there. See Smith v. C. V. R. Co., 80 Vt. 208, 67 Atl. 535.

5. When the plaintiff received the injury complained of he had been in the defendant's employment seven days shoveling coal, most of the time at the coal chute, loading tenders with coal. He had worked for the defendant in the railroad yard, shoveling snow, 10% days at one time and 3 or 4 days at another time, the last time about a week before he began shoveling coal, and the other about a week before that. When he shoveled snow, he worked upon all the tracks in the Island Pond yard, and helped clear out the switches. This seems to have been all of his experience in working about railroads, engines, and freight cars. He had been a farmer except three years, when he had worked in a print mill. He was 57 years old, 5 feet 4 inches in height, and for anything that appeared a man of ordinary intelligence.

that the grab iron was placed horizontally was the duty of the court to consider the on the car; that he placed his right foot evidence in the light most favorable to the on the drawbar, and was attempting to plaintiff. If there was evidence tending to place the other on the brake beam so as to show that he was in the exercise of the care step down; that he did not know that there and prudence of a prudent man under like was a spring in the drawbar that allowed circumstances, the motion could not be grant'it to shut in or pull out. He further tes- ed. Boyden, Adm'r, v. Fitchburg Ry. Co., 72 tified that he had no notice or knowledge Vt. 89, 47 Atl. 409, and cases cited in the that cars were likely to shunt on that track. opinion. This has long been the settled rule On cross-examination the plaintiff testified of law. The plaintiff's experience in workthat he knew that track No. 1 was used for ing upon and about engines and freight cars; the storage of coal cars; that he saw this the fact that the passage was generally kept string of cars on the track when he went to open and that the plaintiff was attempting work that morning; that no others were to reach it when he was descending from the placed there while he was there at work; car; that this was the most direct and the that in climbing upon the car from the pas-usual way to reach the building which his sageway he put his foot upon the brake duty required him to enter to close the beam and his knee up on the shelf, and did windows; that the string of coal cars had not use the drawhead. Upon being recalled, stood there two hours or more, with no enthe plaintiff testified that he had no knowl-gine attached and with no warning or sign edge that the point of the split switch was bent or broken, and that he had no knowledge that it had no lock upon it; that, if any cars had been placed upon the track while he was upon the car he should have known it by the noise, and that a switchman would have been there motioning; that the coal upon some of the cars was piled up higher than the body of the car so as to obstruct his view in that direction; also, that in getting down from the car he looked for a stirrup and found none.

that they were about to move; the time it would take him to descend-were all matters for the consideration of the jury. If the coal was piled so high upon some of the coal cars that he could not have seen the approaching engine as he turned his face to the west to facilitate the act of getting down, it could not be held as matter of law that that act was negligent. Whether he could have seen it was a controverted question. If he had seen or could have seen it when it was east of the switch, it was for the jury to say whether he should have watched it and discovered which track it took at the switch; no warning or signal being given to him. Engines were constantly going to the ash pit to be cleaned. They went less frequently into track No. 1. If he could have seen the switch, the evidence does not make it clear that he could have told which track the engine had taken. The circumstances attending the accidental passing of the engine onto the boiler house track were somewhat different from what they were when an engine was sent there to remove a coal car.

The defendant's evidence tended to show that there were stirrups and handles on all four corners of the car and in perfect condition. Except as a convenience to himself in sooner reaching the passage, there was no apparent reason why the plaintiff should not have got down at the southwest corner of the car and walked along the south side of it to the passage. It is not clear that he could have got down on the north side and reached the door by going between the car and the building, as the space was narrow. The plaintiff admitted on crossexamination that he had observed the movement of cars and engines upon the tracks in the vicinity, the method of coupling cars and engines, and the liability of freight cars to be knocked along the track when struck by an engine, and knew that the drawheads were liable to come together with a strong impact. The morning of the accident was bright and clear. The plaintiff's car stood See cases cited in the opinion. at the west end of the track, so that danger could only come from the other direction, yet for convenience in descending he turned his back to the east. He denied seeing the engine upon that track, and his evidence tended to show that coal was loaded so high upon some of the cars that were standing there that he could not have seen an engine coming down the boiler house track.

The rule was correctly stated in Place v. Grand Trunk R. Co., 80 Vt. 196, 67 Atl. 545:

* If there are opposing inferences to be drawn from the evidence bearing upon the question of contributory negligence, * that question must be submitted to the jury.”

It cannot be

It

held as a matter of law that, in the circumstances of the case, the plaintiff had or was chargeable with such knowledge of danger that he was guilty of contributory negligence in attempting to descend from the car. was for the jury to say whether he reasonably ought to have known of the danger attending the act. Our cases upon this point are so numerous, and several are so recent, At the close of all the evidence, the de- that it is not necessary to restate them. The fendant moved for the direction of a verdict leading ones were cited in the opinion in this upon the ground of the plaintiff's contribu- case when it was here before. This case is

the accident happened from no want of care on | owing to its defective condition; by the elhis part.

[Ed. Note. For other cases, see Innkeepers, Dec. Dig. § 10.*]

2. INNKEEPERS (§ 10*)-INJURY TO GUEST NEGLIGENCE.

Where a guest in a hotel is injured by the falling of the top of a folding bed, it is evidence, in the absence of explanation by the innkeeper, that the injury was caused by his negligence. [Ed. Note. For other cases, see Innkeepers, Dec. Dig. & 10.*]

evator falling with him, after having been negligently inspected, although the innkeeper himself had employed a proper inspector, and was not personally negligent; by the breaking of a defective railing, by reason of which the guest fell into an area; and by the guest falling off an unguarded stairway." The authorities are in substantial agreement that while the duty of an innkeeper requires him to take reasonable care of the persons of his guests, he is not to be regarded as an insurer Depositions are proper' excluded, where, of their safety. His liability has sometimes though the rules of court provide for taking depositions of ancient, infirm, and going wit- been declared to be similar to that of a comnesses, it is not shown that the witnesses whose mon carrier, but the better opinion seems to depositions were taken were within such classes, be that the degree of care required of an innor that their presence in court might not be ob-keeper is not so great as that which is im

3. DEPOSITIONS (8 88*)-EXCLUSION.

tained.

[Ed. Note. For other cases, see Depositions, Dec. Dig. 88.*]

posed upon those who carry passengers for hire. In discussing this question in Clancy v. Barker, 131 Fed. 161, 66 C. C. A. 469, 69

Appeal from Court of Common Pleas, Cam-L. R. A. 653, Judge Sanborn says: "While bria County.

Action by A. C. Lyttle against J. B. Denny. From an order refusing to take off a nonsuit, plaintiff appeals. Reversed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

Thomas H. Greevy, J. C. Davies, and E. G. Brotherlin, for appellant. M. D. Kittell and H. H. Myers, for appellee.

there are many loose statements in the books to the effect that the liability of common carriers to their passengers and the liability of innkeepers to their guests are similar, and while that proposition may be conceded, it is certain that the limits of these liabilities are by no means the same. A railroad company ercise the utmost care in the preparation of is liable to its passengers for a failure to exits road and the operation of its engines and trains upon it, because the swift movement of its passenger trains is always fraught with extraordinary danger, which it requires extraordinary care to avert. But an innkeeper's liability for the condition and operation of his hotel is limited to the failure to exercise ordinary care, because his is an ordinary occupation, fraught with no extraordinary danger." It may be assumed, ther that the duty imposed by law upon an innkeeper requires him to furnish safe premises to his guests, and to provide necessary articles of furniture, which may be used by them in the ordinary and reasonable way without danger. Did the defendant, then, in this case, use such reasonable care in the discharge of this duty to the plaintiff who was his guest? The testimony introduced showed the fact and manner of the accident, but stopped short of pointing out the exact defect in the bed which caused it to fall down upon and entrap the plaintiff. The trial judge thought it was incumbent upon the plaintiff to show in detail just what was wrong with The main question raised is as to the lia- the bed, and the reason for its falling; and, bility of an innkeeper to his guests. We find because this did not appear from the testithe general rule of law in this respect is thus mony offered by the plaintiff, judgment of stated in Beale on Innkeepers and Hotels, §§ nonsuit was entered. We do not agree with 162, 163: "The innkeeper is bound to provide his view in this respect. Bearing in mind reasonably safe premises. Both in the duty of the innkeeper to guard with reaoriginal safety of construction and in main- sonable care the safety of his guests, proof tenance the premises must be such as reason- of the happening of such an extraordinary ably to secure the safety of the guest. So accident casts the burden of explanation at the innkeeper has been held liable for injury once upon the defendant. The accident was to the guest by the ceiling falling upon him, so far out of the usual course that no fair

POTTER, J. From the history of this case it appears that in May, 1903, the plaintiff was a guest at the hotel of the defendant in Johnstown, Pa. In the room which was assigned to him there was an old-style folding bed, with a wardrobe in the back, and so arranged that the bed portion would fold up so as to leave the bed in an upright position when not in use. The top of the bed was heavy, weighing about 300 pounds. The plaintiff occupied the bed during the night, and early the next morning, as he was about to rise, the top or upright portion of the bed fell forward upon him, crushing his head down upon his breast and inflicting severe injury. To recover damages for the injury thus caused the plaintiff brough this suit against the proprietor of the hotel. Upon the trial at the conclusion of plaintiff's testimony, the court entered judgment of compulsory nonsuit, and from the refusal to strike it off the plaintiff has appealed.