mercial ports in the world. The presumption at the end of this time was that the vessel was lost, and that those on board including Captain T. had perished.(7)

4. G. was commander of the United States sloop of war, Albany, which left Aspinwall for New York, September 28, 1854. Up to November 1, 1855, nothing had been heard of G. or any of the officers or crew of the vessel. In an action brought by G. and pending at that time in the New York Courts, judgment was entered in his name in November 27, 1854. Eighteen days is the outside time for a passage from Aspinwall to New York. The presumption was that G. was dead on November 27 and the judgment is void. (8)

5. On January 27, 1857, M. sailed from Liverpool to Valparaiso. The voyage should have been made in ten weeks. In January, 1858 nothing had since been heard of the vessel or its crew. The presumption was that M. was dead.(9)

In case 1 it was said, that insurance companies recognizing the inference, were in the habit of paying insurance on vessels after the lapse of a year when a vessel sailed from an American to a European port and was not heard of. "One who has sailed in a vessel which has never been heard of for such length of time as would be sufficient to allow information to be received from any part of the world to which the vessel or persons on board might have been expected to be carried, and who has never been heard of since the vessel sailed, may be presumed to be dead."

In case 2 it was said: "The decisive point is the time of J.'s death. The precise time will never be known, till the mighty deep gives up its dead at the last great day. For the purpose in hand we must have recourse to the dictates of common experience and to legal presumptions. J. departed from this port on the steamship President, on the 11th day of March, 1841. Nothing has ever been heard of the vessel or of any of her passengers or crew from that day to the present. The usual time for steam passages across the Atlantic from New York has been fourteen or fifteen days, and the longest passages have not exceeded twentythree or twenty-four days. Forty days is a long passage from hence to England in a sailing vessel of ordinary quality, and the outward trips of our packet ships are seldom beyond thirty days and oftener under twenty-five. These are facts forming a part of the experience and common knowledge of the day, and as such are legitimate ground for the judgment of the court. Now it is very true that the ill-fated President may have become disabled and drifted about for weeks and weeks, before she was finally engulfed by

(7) Merritt v. Thompson, 1 Hilt. 550 (1858). An interesting note is appended to the report of this case as follows: This case was decided in New York city, April 3, 1858, and five days later the following paragraph appeared in the New York Tribune: A Lost Captain Found. The New York correspondent of the Boston Journal states that some three years ago the report reached New York that the ship Helena was lost. Her commander, Captain Thompson, had with him his son, and left in New York his wife and several children. His cargo was a load of Coolies; and it was believed that the cargo had risen and murdered the crew. The insurance office paid the policy, and an administrator was appointed for the estate. But Mrs. Thompson has had unwavering faith that her husband and son were alive, and would both return. This week a vessel arrived at this port, and states that they passed and hailed a vessel bound for China, which had on board Captain Thompson and crew of the Helena. The news has been hailed with joy, and public thanksgiving was given last Sabbath in the Mariner's Church.' Upon inquiry however this was not the Captain Thompson referred to in the above case; nor has he nor his vessel since been heard of." The result justifled the legal presumption in this case at least. (8) Gerry v. Post, 13 How. (Pr.) 118 (1855). (9) Re Main, 1 Sw. & Tr. 11 (1858).

the waves of the Atlantie. But what was her probable fate? A regular and tolerably fair passage would have carried her to England before the last day of March, 1841. If she had become a wreck and had been buffeted to and fro upon the ocean, the chances would have been greatly in favor of her being seen by some one of the many sail that are constantly passing between the United States and Europe. The fact that she had the recourse of both sails and steam, thus doubling her chance of making some port in case of disaster; and the impenetrable cloud that has always hung over her end, lead the mind irresistibly to the conclusion that she must have gone to the bottom before she had been six weeks out of New York; and the strong probability is that she was lost within a few days after her departure. This is a different question from the one presented, when it is to be determined whether a sufficient time has elapsed to compel payment of an insurance on a missing vessel. Then all the chances in favor of safety are suffered to expire, before the final and last step is taken by the payment of the loss. Here the fact of the death of the party is conceded, and the inquiry is, when did it happen? In the case of the insurance after waiting for a year from the sailing of the missing ship, and then paying the loss, it is not paid on the presumption that the vessel was lost only on the day that payment was made; but on the supposition that she must within the longest customary period allowed for such vessels to reach their port of destination. It is a general rule that if a ship has been missing, and no intelligence received of her within a reasonable time after she sailed, it shall be presumed that she foundered at sea. The underwriters are permitted to wait until intelligence of the missing vessel can no longer be reasonably expected. So the Surrogate's Court will delay the grant of administration upon the estate of one who sailed in such a vessel, while hope proclaims a chance of his safety. But when the expectation of tidings of ship and passenger is entirely exhausted, and the underwriter and the surrogate act upon the legal presumption of the loss of both, that presumption relates back to a time far anterior to the period when such action takes place. It is a presumption founded upon common sense and experience, and leads to the conclusion that the loss occurred within the longest usual duration of a voyage from the port of departure to that of the ship's destination; because a loss within that time is far more probable than that the vessel after becoming disabled should have drifted about for any considerable period, at the mercy of the waves, without encountering some other vessel or ultimately reaching the land. (10) * * * The authorities fully sustain my conviction that the steamer President must be deemed to have been lost before May, 1841."

In case 3 it was said: "The presumption of his death does not rest upon the fact that he has not been heard of for seventeen months, but upon the weightier circumstance that the vessel has not been heard of. It is suggested that she may have been lost or destroyed by pirates, and the defendant have survived; that considering the dangerous nature of the navigation in which he was engaged, and the character of the islands of the Pacific where he may have landed, it is not unreasonable to suppose that he may still be living. The supposition that a man may be living is not unreasonable where nothing is known to the contrary, until the natural limit of life has been passed. It is possible that the defendant may be alive, but that would be possible fifty years hence. The question is not

(10) As to the presumption of the loss of a vessel under such circumstances, see Houstman v. Thornton, Holt. N. P. 242; Newby v. Read, Park, on Ins. 85; Brown v. Neilson, 1 Comes, 525.

whether it is possible he may be alive, but whether the circumstances of this case do not warrant that strong probability of his death upon which a court of justice should act. Forty years after the belief had become universal in Europe that the vessels of La Perouse and all on board of them had perished, discoveries were made rendering it highly probable that he and some of his companions had survived, and had lived for many years on one of the islands, forming part of the great groups through which the vessel of the defendant must have passed in the successful prosecution of her voyage. The suggestion that La Perouse might still be living, would have availed little in a French court against the claim of the heirs to inherit. It would be presumed that he was dead, for courts of justice do not allow the consideration of possibilities to outweigh a case of strong probability, but adopt and act upon those presumptions which seem most in accordance with the ordinary and usual course of events. Presumption founded in a reasonable probability must prevail against mere possibilities, for were it otherwise, the conclusion could never be arrived at that a man was dead, until the natural limit of human life had been reached. Suggestions quite as well entitled to consideration as those now presented to the court have been offered in previous cases;(11) but were not allowed to prevail against the presumption which was deemed the proper and reasonable one under the circumstances. Seventeen months have gone by since the defendant departed upon a voyage, the ordinary limit of which is four months, and nothing having been since heard of the vessel or of those who were on her, the presumption must be that she is lost, and that the defendant and those on board have perished. A greater length of time would strengthen the probability, but sufficient has elapsed to warrant the court in adopting and acting upon that presumption."

In case 4 it was said: "If a tenant for life remove beyond sea or absent himself in this State or elsewhere, for seven years together, he is presumed to be dead. That is a conclusion founded upon mere absence and not being heard of for that time without reference to other circumstances. Other cases are left to depend on the various facts which may be connected with them. A vessel when absent double the longest time of a voyage may be presumed to be lost; and it follows as a consequence that it will also be inferred that all perished with her, if none of the passengers or crew are afterward heard of. In October of last year we were shocked at the news of the loss of the Arctic and most of her crew and passengers. Still hopes were reasonably entertained that some individuals might have been picked up by vessels going to Europe, and until abundant opportunity had passed to hear from all such vessels this hope was properly indulged; and the legal inference might have been until that time was passed that any individual not known to have perished was still alive. But when that last anchor of hope was gone, then the conclusion was that those not heard from had perished-not when hope was last given up-but at the time when from all circumstances it was most probable they had perished, and would carry us back to the time when the illfated vessel and passengers and crew sank together. Thus in earthly as in heavenly things, things invisible

as certain as any thing not seen can be, and throws light on the question, when did that destruction occur? The reasonable answer is, at some time within the period usually assigned as the longest for such a voyage; and it might be from the circumstances that it should be considered as some time while in her ordinary course she would still be in the stormy Gulf of Mexico. Either way it must have occurred before the judgment in this case."

(B.)

1. On November 15, 1857, G. S. sailed from Barcelona to Constantinople, the average duration of the voyage being thirty days. The vessel had never arrived at her destination, nor had any thing been heard of her or the crew. No inquiries had however been made at Barcelona. There was no presumption that on November 15, 1858, G. S. was dead.(12)

2. On October 20, 1858, B. sailed in command of a vessel from Demerara to London. Nothing was afterward heard of the vessel or crew. No inquiries had been made at Demerara. There was no presumption on March, 1859, that B. was dead. (13)

In case 1 Creswell, J., said: "I do not find in the affidavits any statement that inquiries have been made at Barcelona or elsewhere about the crew. The affidavits only state that neither the vessel, G. S., nor any of the crew have been heard of. I should undoubtedly presume that the vessel has been lost, but it does not follow that the crew or some of them may not have been saved. The case had better stand over until you have written to the agent of the ship at Barcelona and ascertained whether any of the crew have survived."

In case 2 the same judge said: "I think probably the vessel is lost, but it does not appear that any inquiries have been made at Demerara as to whether any of the crew have arrived there or have been heard of."

SMITH V. ST. PAUL CITY R. Co.*

Street railway companies, as carriers of passengers for hire, are bound to exercise the highest degree of care and diligence consistent with the nature of their undertaking and are responsible for the slightest neglect. This rule extends to the management of the cars and track, and to all the arrangements necessary for the safety of passengers as respects accidents from collision or otherwise. Where an injury to a passenger occurs through a defect in the construction or working or management of the vehicle, or any thing pertaining to the service which the carrier ought to control, a presumption of negligence arises from the happening of the accident, and upon such proof the burden will devolve upon the defendant to exonerate himself by showing the existence of causes beyond his control, unless evidence thereof appears as part of plaintiff's own case.

It is not error for the trial court to refuse an application to allow the jury to witness experiments outside the courtroom, with cars upon a railway track as bearing on the question of the possibility of an alleged collision.

stood by the things that are known. In this case nearly the same time has elapsed since the Albany left her port destined for this city, and that is the last that has been heard of her, or of any of her crew. The lapse of time makes the death of all on board of her

(11) See Twemlow v. Oswin, 2 Camp. 85; Green v. Brown, 2 Strange, 1199.

county. Opinion states the case.

C. K. Davis, for respondent.

H. J. Horn, and O'Brien & Wilson, for appellant.

(12) Re Smyth, 28 L. J. (P. & M.) 1 (1858). (13) Re Bishop, 1 Sw. & Tr. 303 (1859).

* C., 18 N. W. Rep. 827

VANDERBURGH, J. This action is brought to recover damages for personal injuries alleged to have been caused by a collision between two street cars of the defendant, on one of which plaintiff claims to have been a passenger. Defendant denies that he was a passenger, and insists that under the circumstances it is liable for the exercise of ordinary care only.

1. Upon this question plaintiff's evidence tends to show that he had reached the car, which had stopped for him at a crossing, and was endeavoring to enter it by a single low step, in the rear and center of the car, between the rails; that while he was on the step and in the act of opening the door, which opened with difficulty, he heard the noise of another car approaching, which was unexpectedly brought into collision with the one he was entering, and he was thereby struck, knocked down, and severely hurt. The defendant's evidence also tends to show that the forward car had stopped and was waiting for plaintiff, and that he had passed to the rear thereof and stood between the rails, where he was seen by the driver of the, rear car before the accident. The court charged the jury that "if the plaintiff was not actually on the platform, but had hailed the car, and the car had stopped for the purpose of enabling him to take passage, and he was in the act of carefully and prudently attempting to step upon the platform, he is to be regarded as a passenger." This instruction was correct as a legal proposition, and also clearly within the evidence, which taken together, is amply sufficient to support the finding that the plaintiff had accepted the defendant's invitation to take passage, which had been signified by its stopping the car and waiting for him to enter it; that he was in the act of entering it, and had so far placed himself in the charge of the defendant as to be entitled to the protection of a passenger. The rule is not inflexible that to entitle a person to such protection he must be actually within the vehicle or upon some portion of it. Otherwise he might in good faith, and in the exercise of due care, place himself in a position of peril while in the act of taking passage, upon the consent and invitation of the carrier, and the latter be bound to the exercise of ordinary care only. Brien v. Bennett, 8 Car. & P. 724; Allender v. Railroad Co., 37 Iowa, 270; Gordon v. Railroad Co., 40 Barb. 550; Com. v. Railroad Co., 129 Mass. 501; Thomp. Carr. 42; Hutch. Carr., § 556; Shear. & R. Neg., § 262.

2. The defendant was a carrier of passengers for hire, owning and controlling the tracks and cars operated thereon. It is therefore subject to the rules applicable to passenger carriers. Thomp. Carr. 442; Barrett v. Street R., 1 Sweeny, 568; 8 Abb. Pr. (N. S.) 205. As respects hazards and dangers incident to the business or employment, the law enjoins upon such carrier the highest degree of care consistent with its undertaking, and it is responsible for the slightest negligence. Wilson v. N. P. R. Co., 26 Minn. 280; S. C., 3 N. W. Rep. 333; Warren v. Railroad Co., 8 Allen, 233; 43 Am. Dec. 354, 356, notes and cases. This rule extends to the management of the cars and track, and to all the subsidiary arrangements necessary for the safety of passengers. Simmons v. S. B. Co., 97 Mass. 368; Meier v. Railroad Co., 64 Penn. St. 230. It would, of course, also be applicable to the proper arrangements for running street cars upon the same track, in respect to risks and dangers of accidents from collision.

3. In support of the charge of negligence in the management of the rear car (No. 26), and the horses attached to it, plaintiff's evidence tended to prove that before he reached the forward car (No. 8) he saw car 26 approaching upon an up grade, about one-half block away, and moving at the usual rate of speed; that while he was in the act of entering the car which stood waiting for him, hearing a noise on the track behind him

he looked around and saw the horses of car No. 26 approaching rapidly, and immediately the collision occurred, in which he was injured. The horses and car 26 were turned to the right and ran off the track, and im mediately stopped in the street along-side of car No. 8, which was also thrown off the track. Assuming the testimony of plaintiff and his witnesses to be true, it is evident that the forward car must have been struck either by the horses or some part of car No. 26, and that plaintiff was struck and injured thereby. We think it is also evident that the horses must have started into a gait much more rapid than usual in such service, or proper, considering the proximity of the forward car; but plaintiff's evidence however failed to explain this, and though it included the testimony of passengers in car No. 26 at the time, it did not appear as a part of plaintiff's case that the horses had in fact become unmanageable, or were actually "running away." The collision occurred in the evening, and during a storm, but the streets were sufficiently lighted, so that the plaintiff and car No. 8 were discernible by the driver of car No. 26. No adequate or satisfactory cause therefore for the happening of the accident and injury to plaintiff, consistent with due diligence on the part of the defendant, is disclosed by plaintiff's case.

The severe rule which enjoins upon the carrier such extraordinary care and diligence is intended, for reasons of public policy, to secure the safe carriage of passengers, in so far as human skill and foresight can effect such result. From the application of this strict rule to carriers it naturally follows that where an injury occurs to a passenger through a defect in the construction or working or management of the vehicle, or any thing pertaining to the service which the carrier ought to control, a presumption of negligence arises.

The general rule is thus stated in Scott v. London Dock Co., 3 Hurl. & C. 596: "There must be reasonable evidence of negligence; but where the thing is shown to be under the management of defendant or his servants, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence in the absence of explanation by defendant that the accident arose from the want of care."

The rule is therefore frequently stated, in general terms, that negligence on the part of the carrier may be presumed from the mere happening of the accident. The reason of the rule seems to be that from the very nature of things the means of proving the specific facts are more in the power of the carrier. The latter, owning the property and controlling the agencies, is presumed to have peculiarly within his own knowledge the cause of an accident, which he might be interested to withhold, and which the passenger could not know and might himself be unable to prove. Thomp. Carr. *211. The application of this rule is not limited to a breakage or defect in the vehicle in which the passenger is carried, but "extends to any other thing which the carrier can and ought to control, as a part of its duty to carry passengers safely." Meier v. Railroad Co., supra; Feital v. Railroad Co., 109 Mass. 405. Hence the fact of a collision between cars belonging to the same company upon a railway track is considered prima facie evidence of negligence on the part of the company, and it is not necessary for the plaintiff to prove specifically in what it consisted. If it occurred without the fault of defendants it is ordinarily for them to show it. Skinner v. Railroad Co., 5 Exch. 787; Railroad Co. v. Pollard, 22 Wall. 343; Ang. Carr. (5th ed.), § 789. Where however the plaintiff's own evidence shows the operation of causes beyond the control of the carrier, as the presence of vis major or the

This was objected to as being premature in that stage of the trial, and also as having no tendency to prove a previous seduction. So far as the question related to the order of proof, we think it was addressed to the discretion of the trial judge. The other branch of the objection was untenable also. It is no doubt true, as has been urged, that such acts tend rather to lend probability to the charge of subsequent intercourse than to prove a previous seduction; yet as in this case, the illicit intercourse is alleged to have been kept up for some time after 1878, and it was a part of plaintiff's case that she was begotten with child by the defendant in 1880, the acts of familiarity which were testified to in 1878 were not without importance. They tended to show an existing condition of things such as the plaintiff had set up, and rendered more probable the story of continuous intercourse, to which she afterward testified.

It was urged by the defendant that on the evidence of the plaintiff the action could not be maintained, because, as she claimed, the intercourse was accomplished by force, and was therefore not seduction, but rape. But the plaintiff's evidence did not make out a rape; it made out only that her will was overcome by the defendant's superior will, which had controlling influence, because of the parental relation which he had assumed toward her. If the case were in fact one of rape, there would be very good authority for holding that the action might be sustained, notwithstanding the fact that the intercourse was accomplished by force. Kennedy v. Shea, 110 Mass. 147; S. C., 14 Am. Rep. 584; Damon v. Moore, 5 Lans. 454; Lavery v. Crooke, 52 Wis. 612; 9 N. W. Rep. 599; 38 Am. Rep. 768.

It was also urged that suspicion was cast upon the story of the plaintiff by the fact that she did not make immediate complaint when the wrong was first committed, and instructions to the jury were requested to that effect. We think there was no error in refusing them. Counsel was at liberty to comment upon the fact if he deemed it advisable to do so, and perhaps the judge also; but the judge could not lay down any rule of law in respect to it which would benefit the defense. Obviously, as respects immediate complaint, rape and seduction present very different considerations. When the truth of a charge is being investigated, in the light of the conduct of the parties concerned, we are to consider what the behavior would naturally have been had the charge been true; and while all would probably agree that a virtuous woman who had been ravished would be likely to make immediate outery or disclossnre, very different conduct would be looked for in case of seduction. The woman seduced is more likely to reveal her shame only when concealment is no longer possible, especially where the seducer holds toward her some family relation.

One of the assignments of error concerns the evi. dence given by the plaintiff that at one time, not very distinctly specified, but which would seem to have been in the winter before the birth of the child, the defendant informed her that he had concealed $400 in a specified place, which she was to have in case he should die before her, and in that event he desired her to take it, but to let no one know about it. It does not appear from the evidence that this conditional gift was the result of any previous understanding or promise, or that it had any connection whatever with the previous or continuing sexual intercourse. Neither was it shown that the defendant then knew the plaintiff was in the family way. If we believe the plaintiff's charge we should naturally attribute such a gift by the defendant to a desire to make some compensation for the wrong done. If we believe the defendant truthful, the conditional donation may, on the other hand, be referred to very proper sentiments. The plaintiff had

at that time been for eight years a member of defendant's family, occupying the place of a child, though not formally adopted. If she survived him the law made no provision for her as a child, and this small gift he might very well make, and probably ought to make, if their relations had been perfectly innocent. The secrecy in the case might seem to require explanation; but there might be very good reasons for making such a gift in such a way that it could not become the subject of possible family contention after his death. The act of making it was therefore apparently as consistent with good motives and honorable conduct as with a consciousness of crime; and it naturally indicated crime only to a mind already convinced. Conduct from which such opposite deductions are not only admissible, but would be natural, according to the prepossessions we may have respecting the person, ought not to be proved. The very reception of the evidence as tending to prove guilt casts a suspicion upon the act sworn to, which it cannot be seen even probably to deserve, and it may consequently work great injustice. The exception is well taken.

When the plaintiff was giving evidence on her own behalf she was asked what the defendant had told her respecting his pecuniary circumstances. Objection was made by the question, but she was allowed to answer, and she stated that he had told her he was worth $20,000. The avowed purpose of giving this evidence was to swell the damages. In the instruction to the jury the trial judge did not pointedly call their attention to it, but he instructed them that in awarding damages for the shame and ignominy which the plaintiff has suffered by reason of the wrongful act of the defendant they might award to the plaintiff such sum as their fair and deliberate judgment and discretion should dictate, having regard to all the circumstances of the case-the seduction and relation of the parties before and at the time of the alleged wrong to the plaintiff. The jury must therefore have understood they were at liberty to give damages with some regard to the amount of the defendant's pecuniary

means.

If this were an action for breach of promise of marriage the wealth of the defendant would have been a fair subject of inquiry, but this is for the obvious reason that the plaintiff's loss in such a case has direct relation to the means of the man she was to marry. Miller v. Kosieo, 31 Mich. 475; Bennett v. Beam, 42 id. 346; 4 N. W. Rep. 8; S. C., 36 Am. Rep. 442; Kelly v. Riley, 106 Mass. 339; S. C., 8 Am. Rep. 336; Kniffen v. McConnell, 30 N. Y. 285. In several cases it has been held that similar evidence is admissible in actions brought for malicious injuries to plaintiff's reputation. Karney v. Paisley, 13 Iowa, 89; Hayner v. Cowden, 27 Ohio St. 292; Humphries v. Parker, 52 Me. 502; Bennett v. Hyde, 6 Conn. 25; somewhat qualified in Case v. Marks, 20 Conn. 248; Hasley v. Brooks, 20 Ill. 115. In Holmes v. Holmes, 64 III. 294, it appears to have been received by the court with some degree of dissatisfaction, and in Alabama it is rejected. Jones v. Donnell, 13 Ala. 490; Sea v, Greenwood, 21 id. 494; Ware v. Cartledge, 24 id. 622.

In this State the admission of such evidence has been held not error where the judge carefully cautioned the jury against giving it any consideration except as bearing upon the injury likely to flow from slanders by a man of the defendant's standing. Brown v. Barnes, 39 Mich. 211; S. C., 33 Am. Rep. 375.

Little evidence has been held proper in some cases of criminal conversation. Yundt v. Hartrunft, 41 Ill. 9; Rea v. Tucker, 51 id. 110; Peters v. Lake, 66 id. 206; S. C., 16 Am. Rep. 593; contra, James v. Biddington, 6 Car. & P. 589. Some courts hold this evidence admissible in all cases of tort which are accompanied by such circumstances of aggravation as are proper so to