
    Pennsylvania Railroad Company v. Snyder.
    
      Railway corporation liability — Requirement as to condition of property — Transfer of defective cars over connecting lines — Personal injury — Care required of employe — Contributory negligence.
    
    1 Where companies controlling connecting lines of railway, transport over their respective lines loaded freight ears of the other, under a traffic arrangement by which they share the earnings, and one company delivers to the other to be transported over its line a car that is so defective in its equipments as to be dangerous to handle, which should have been inspected and repaired before being so delivered, and in consequence of such defective condition of the caiman employe ■of the latter company receives an injury while handling it in the course of his employment, the negligence of the former ■company in delivering the car for transportation without proper inspection and repair is the proximate cause of the injury, although the employer company should also have made an inspection of the car when it was received, and was negligent in that duty; the negligence of the latter company, while contributing to produce the injury, is not an independent cause breaking the causal connection between the injury and original negligence of the company furnishing the car for transportation; and either company, or both, may be held responsible at the election of the party injured.
    
      2. The company delivering the car to the other company, should anticipate that employes of the latter would go upon and handle the car and thereby be exposed to the danger of receiving injury, as a natural and probable consequence of its defective condition, and owes such employes the duty of using reasonable care to discover and remove its dangerous defects before it is so delivered. The services of such employes being necessary to accomplish the transportation intended, the delivery of the car for that purpose amounts to an invitation to them to go upon and handle the car in the course of their employment, and an assurance that they could safely do so.
    3. When a person without his fault is placed in a situation of danger, he is not to be held to the exercise of the same care and circumspection that prudent persons would exercise where no danger is present; nor can it be said that, as matter of law, he is guilty of contributory negligence because he fails to make the most judicious choice between hazards ' presented, or .would have escaped iujury if he had chosen differently. The question in such case is not what a careful person would do under ordinary circumstances, but what would he be likely to do, or might reasonably be expected to do in the presence of such existing peril, and is one of fact for the jury.
    [Decided December 1, 1896.]
    Error to the Circuit Court of Lucas county.
    The original action was brought by the defendant in error, Jesse Snyder, against the Pennsylvania Railroad Company, plaintiff in error, and the Lake Shore & Miehigan'Southern Railway Company, in the court of common pleas of Lucas county.
    The petition is as follows ;
    “The said plaintiff complains of the defendant the Pennsylvania Railroad Company, and says that it is a railroad corporation organized under the laws of the state of Pennsylvania, doing business and having a managing agent in the county of Lucas. That it owns and operates a line of freight cars known as the ‘Empire .Line,’ and said cars are known as Empire cars. That said defendant at the time hereinafter named, was accustomed to run its said cars over the various lines of railroad of said Lucas county, among other roads being that of the defendant the Lake Shore & Michigan Southern Railway Company, for the purpose of transporting freight. That it is the duty of the said Pennsylvania Railroad Company to keep all such ears they may have occasion to run over said lines of railroad in ordinary condition and repair, so that the switchmen, brakemen and other persons employed on and about said cars can perform their duties with reasonable safety to their lives and limbs.
    “Plaintiff further says that the defendant, the Lake Shore & Michigan Southern Railway Company is a railroad corporation organized under the laws of the state of Ohio, owning and operating a line of railroad extending from the city of Toledo, Ohio, through said county of Lucas, and to the city of Detroit, Michigan. That it is the duty of the Lake Shore & Michigan Southern Railway Company to have all the freight cars, with the ladders and appliances upon the same, in such repair and condition as to render it reasonably safe for the switchmen and brakemen employed in and about its freight trains, to perform their duties upon the same. On and for a long time previous to the 17th day of November, 1893, this plaintiff was engaged by the said Lake Shore & Michigan Southern Railway Company as a switchman in the yards of the. said company at a place known as Air Line Junction at the city of Toledo, in the said Lucas county, Ohio. That in said yards the defendant has a great number of tracks, where it is accustomed to make up its trains and switch ears back and forth.
    “That said Empire cars are what is known as box cars, and each of the same is furnished at the end thereof with a ladder, for the purpose of allowing the switchmen, brakemen and others who may have occasion to climb upon said cars, the means of doing so. That said Pennsylvania Railroad Company was accustomed, prior to said time,in the construction of said cars, to place upon said cars what is known as a ‘handhold’, the same being a round piece of iron which is' attached to the top of the ears, near the end thereof, and directly above and over the upper round of said ladder, to which said switchmen, brakemen and other persons who may have to climb to the top of said cars on said ladder, were accustomed to grab to assist them in climbing to the top of said cars. That on or about the 17th day of November, 1893, the said defendant the Pennsylvania Railroad Company, carelessly, wrongfully and negligently caused to be delivered, for the purpose of being transported to the city of Detroit, or some other point unknown to plaintiff, to the said defendant, the Lake Shore & Michigan Southern Railway Company, one of its said Empire line box cars, the number and description of which are to plaintiff unknown. That said car was defective, dangerous and unfit for service in this: that the ladder upon one end of said ear was loose and insecure, so that a person who might attempt to mount the same would be liable to be thrown from the same and receive great injury. Said car was also defective in that said defendant had - permitted the handhold with which said car was originally supplied, immediately above said ladder and upon the top of said ear, to become displaced and carried away, and that said ear at said time was not furnished with a handhold, as it should have been, so that a person mounting said ladder and reaching to the top of the same, would be without means by which he could reach the top of said car. All of the foregoing was well known, or by the use of reasonable care might have been known to each of the said defendants, and was unknown to this plaintiff, and that he had no means of knowing the same.
    “Plaintiff further says that the said defendant the Lake Shore & Michigan Southern Railway Company, on the said 17th day of November, 1893, wrongfully, carelessly and negligently caused the said car to be run into its said yard, and be coupled with other cars and be placed in a train which was standing upon track No. 8 in said yard, in order to be pun to the said city of Detroit. That at or about the hour of 11:30 o’clock in the night time of said day, this plaintiff was engaged as a switchman for the said defendant the Lake Shore & Michigan Southern Railway Company, under the direction and control of George Pierce, the conductor who had in charge the management of the same freight train, employed by the said defendant the Lake Shore & Michigan Southern Railway Company. That said conductor directed the engineer upon the engine, to attach the engine to said train, and draw the cars down to the southeasterly end of the said track, so that the same could be transferred on what is known as the ‘cross-over track,’ to the main line of defendant’s said road, running to said city of Detroit. That the said conductor directed this plaintiff, and it was his duty to climb upon the said Empire car, the same being the last car of said train, and when said train had passed a switch leading to said cross-over track, to'signal the'engineer in said engine to stop said train. In compliance with said order and in pursuance of his duty as switchman, this plaintiff attempted to climb up the ladder on the end of said Empire car, and when near the top of said car, reached for the handhold which should have been upon the top thereof; but by reason of the said defective condition of said ladder, and of the absence of the handhold, the plaintiff was unable to reach the top of the said car, and the train being in motion, he was unable to retain his position upon said ladder, and was violently thrown from the same upon the rail of the track over which the car was passing. His right leg struck across one of the rails of said track, and was crushed, mangled and broken between the ankle and knee. His right ankle was also severely sprained and bruised, all of which has caused permanent injury to the plaintiff.
    “That the plaintiff was confined to ms bed for the period of four weeks after said accident, when it became necessary to, and the physicians of the defendant, the Lake Shore & Michigan Southern Railway Company, did perform a difficult and painful operation upon the said leg, by wiring the hones of the same which had been broken, together, so that the same might knit and heal. Plaintiff was confined to his bed for a period of six weeks after said operation; and has since said time been wholly unable to perform any labor, and has been crippled for life.
    “Plaintiff says he suffered the said injuries entirely by reason of the negligence of the said defendants, in having in use in the said railroad yard, the said car in such a defective condition, and that said injuries were received by him wholly without fault on his part, and while he was in the faithful performance of his duty, and solely by the negligence and carelessness of the said defendants.”
    And the plaintiff prays judgment for a specified sum, his damages so sustained.
    The Pennsylvania Company filed the following answer:
    “1st. The said defendant ■ Pennsylvania Railroad Company, for its answer to the plaintiff’s petition, says, it admits that it is a ra'ilroad corporation organized under the laws- of the state of Pennsylvania; that it owns and operates aline of-freight cars known as the Empire line; that said ears are run over the various lines of railroad, and among others that of the said defendant, the Lake Shore & Michigan Southern Railway Company, for the purpose of transporting freight; that said defendant, the Lake Shore & Michigan Southern Railway Company is a railroad corporation organized under the laws of the state of Ohio, owning and operating a line of railroad through Lucas county; that said plaintiff, on and prior to the 17th day of t November, 1893, was employed by the said defendant, the Lake Shore & Michigan Southern Railway Company, as a switchman, in the yards of said company at Toledo, Ohio; that said Lake Shore & Michigan Southern Railway Company has a great number of tracks at Air Line Junction, where it is accustomed to make up trains; that said Empire cars are what is known as box cars.
    “This answering defendant denies each and every allegation contained in the plaintiff’s petition, and not herein expressly admitted.
    
      “2nd. This answering defendant further says, that said Empire line car referred to in the plaintiff’s petition, was, on the 16th day of November, 1893, delivered by the Pennsylvania Railroad Company to the Lake Shore & Michigan Southern Railway Company at Erie, Pennsylvania, for the purpose of being used by the latter company in the transportation of ■ merchandise, which the said Lake Shore & Michigan Southern Raiiway Company might desire' to carry therein; that in consideration of the aforesaid use of said car by the said Lake Shore Company, it agreed to pay this answering defendant mileage therefor, the amount depending upon the distance which the said car might be transported by the said Lake Shore Company, in the operation of its business; that before said ear was delivered to the said Lake Shore Company at Erie, Pennsylvania, as aforesaid, the same was inspected by the latter company, and found to be in good, serviceable condition; that so far as this answering defendant knew, or might have known, by the exercise of reasonable care, the said car was in good, condition on the day aforesaid, when the same was delivered to the Lake Shore Company at Erie; that thereafter, and up to and including the 17th day of November, 1893, this answering defendant had no control or management whatever over the han,dling or transportation of said car; that the same was noton said 17th day of November, 1893, in the service of this answering defendant, but was used by the Lake Shore & Michigan Southern Railway Company, and under its sole control and management.
    “This answering defendant further says, that said car, when originally built was constructed after the most approved methods of building cars at that time, and that continuously from the time of its construction until the date of its delivery to the said Lake Shore Company, as aforesaid, this answering defendant caused the said car to be repaired when necessary, and to be kept in good, serviceable condition for railroad purposes.
    “Wherefore this answering defendant prays that as to it, said petition may be dismissed. ”
    The allegations of new matter in the answer were controverted by reply.
    The action as against the Lake Shore Company was dismissed by the plaintiff, and thereafter the cause proceeded to trial upon the issues joined between him and the Pennsylvania Company. The trial resulted in a verdict and judgment for the plaintiff; which judgment was affirmed by the circuit court; and error is prosecuted here to obtain the reversal of both judgments.
    A further statement of the facts pertinent to the questions involved, will be found in the opinion.
    E W. Tolerton, for plaintiff in error.
    1. We claim that the Lake Shore & Michigan Southern Railway Co. is solely liable to Snyder for his injuries. Baltimore & Potomac Railway Co. v. Mackey, 157 U. S., 72.
    It would be most unreasonable and cruel to declare that while a faithful workman may obtain compensation from a company for defective arrangements of its own cars, it would be without redress against the same • company if the damaged car that occasioned the injury happened to belong to another company. In Gottlieb v. The N. Y., L. E. & W. Ry Co., 100 N. Y., 462; Goodrich v. 
      N.Y. C. & H. R. Ry Co., 116 N. Y., 398; Gutridge v. Missouri Pacific Ry. Co., 7 S. W. R., 476.
    2. We claim further that the Pennsylvania Railroad Co. is not liable to Snyder, an employe of the Lake Shore Company for said injuries received by him while in the employment of the latter company. The Lake Shore Co., after inspecting- and accepting said car at Erie, certainly could not hold the plaintiff in error responsible for an!y defects which might subsequently appear in said car. In this respect we claim that the master acts • for its servants, and if the master is concluded by the acceptance of the car at Erie, then its servants should also be concluded ; and if there was any negligence in the Lake Shore Co. in its inspection, acceptance or subsequent management of said car, by reason of which its employe became injured, then said Lake Shore Co. should alone be responsible for such negligence. The testimony shows that the Lake Shore Co. accepted said car at Erie, under a contract to pay the plaintiff in error a certain amount of the freight earnings. The relations of said company, thereafter, became that of bailor and bailee, and the bailee is responsible for all injuries resulting from the use of said car. Kohl v. Love, 37 N. E. L., 5; Winterbottom v. Wright, 10 Mees. & W., 109.
    There was no privity of contract between the plaintiff in error and the defendant; they were strangers to. each other. It is true that there is a class of actions in tort maintained on the ground that the wrongful acts ¿>n the part of the defendant are in themselves imminently dangerous, and from which a general liability arises to anyone who receives injuries, which are the natural and probable consequences of such wrongful acts. Thomas v. Winchester, 6 N. Y., 397; Smith v. N. Y. C. & H. R. R. Co., 19 N. Y., 127.
    But we maintain that the present case does not come within' that principle; the liability of the plaintiff in error in respect to the condition of its cars did not extend beyond those to whom it owed some duty by reason of its relation to them as master or employer.
    3. The jury found under the evidence and instructions of the court that the car in question was defective at the .time it was delivered by the plaintiff in error to the Lake Shore-Co., at Erie, Pa. The court below held, as a matter of law, that if the said car was defective and such defect could have been determined by a reasonable inspection by the plaintiff in error before it was delivered to the Lake Shore Co., then the plaintiff in error would become liable for injuries received by an employe of the Lake Shore Co. thereafter, by reason of such defects, notwithstanding the subsequent inspection by the Lake Shore Co. and the use and control by that company of the car at the time of the injury.
    Now, admitting that the Pennsylvania Railroad Co.. was negligent as charged, we claim that it cannot be held liable in this action, for the reason that a responsible agent intervened between the plaintiff in error and Snyder, and that such responsible agent is alone liable for his injuries. The rule of law is stated by Wharton on Negligence, section 134:
    The negligence of the Pennsylvania Railroad Co. in its inspection of said car at Erie cannot be said to had been the cause of Snyder’s injury; intervening between that and the injury, came the inspection, acceptance and actual use of said car by the Lake Shore Co.; it was, therefore, the intervening negligence of the Lake Shore Co. which was the direct cause of the injury complained of. Ashley v. Harrison, 1 E. S. P., 48; Crain v. Petrie, 6 Hill, 522; Stevens v. Hartwell, 11 Met., 542; Losse v. Chute, 51 N. Y., 494; Bank v. W. U. T. Co., 30 Ohio St., 555; Loop v. Litchfield, 42 N. Y., 351; Carter v. Town, 103 Mass., 507. Sherman and Redfield on Negligence, Sec. 34.
    If it can be argued that the employes of the Lake Shore Co. had knowledge of and relied upon the- inspection of the Pennsylvania Railroad Co., still we say they knew that the Lake Shore Co. would make a subsequent inspection before said car was accepted for use, and that if there was any fault in the inspection of' the former company, the latter would cure such fault and detect any defects which might be observable by reasonable care.
    When, therefore, the plaintiff below dismissed the case as to the Lake Shore Co. we contend that no right of action remained as to the Pennsylvania Railroad Co. for the reason that the Lake Shore Co. was primarily and solely responsible for the plaintiff’s injuries. Gleason v. Detroit, G. H. & M. Ry. Co., 73 Fed. Rep., 647; Shaefler v. Sandusky, 33 Ohio St., 246; Village of Conneaut v. Naef, 54 Ohio St., 529.
    We therefore claim that judgment below should be reversed for two reasons:
    1. That the Lake Shore & Michigan Southern Railway Co., and not the plaintiff in error, is the responsible party;
    2. That the defendant in error was guilty of such contributory negligence as in law prevents a rec'overy.
    
      Surd, Brumbach <& Thatcher, for defendant in error.
    Is the Pennsylvania Co. liable to an employe of the Lake Shore Co. for injuries received by him on account of defects in a car belonging to the former company, existing at the time of its delivery to the latter company which defects the Pennsylvania Co. could have discovered by ordinary inspection?
    1. The Pennsylvania Co. knew upon the delivery of the car in question to the Lake Shore Co. that to transport the same to Detroit necessarily required that brakeman should go up and down the ladder with which it was furnished. It, therefore, was in duty bound to have the ladder in a reasonably safe condition.
    2. As a common carrier it owed a duty to the public to have its cars in repair so as not to cause injury to anyone who might be rightfully on or about the same. The Pennsylvania Co. has failed in' its duty and is therefore liable for the damages which Snyder has suffered by reason of such failure.
    We claim in the case at bar that the Pennsylvania and Lake Shore Co.’s are in effect partners in the transportation of through freight from the east to the west. The Pennsylvania Co., as shown by the evidence of the manager of its freight line, owns five thousand cars and gathers up freight wherever it is able to do so, furnishes the cars for its transportation, and then makes a traffic arrangement with other railroads for the transportation, of cars. That it considers itself liable for the condition of its cars when it delivers them to connecting roads is shown by the evidence that before delivering its cars to the Lake Shore road it inspects them and sees that they are in good order. In addition to the inspection it holds itself open to pay for all repairs which the Lake Shore Co. may be required to make on account of defects existing at the time of the delivery of the cars to the Lake Shore Co. Thus it is apparent that the Pennsylvania Co. recog-, nizes that by its contract with other railroad companies it is in duty bound to keep its cars in proper condition before delivery. That the law imposes this duty upon that company is no longer in doubt. Moon v. Northern Pac. R. Co., 48 Amer. & Eng. R. R. Cases, page 195, (46 Minn. 106) and cases therein cited.
    Counsel for plaintiff in error, although he admits that the car was defective at the time of its delivery to the Lake Shore Co., yet contends that the Pennsylvania Co. lost all control over the car while it was in the possession of the Lake Shore Company. As heretofore stated, we claim that the contract relations between the two companies in questiou were such as to make the Lake Shore Co. in effect either the agent of the Pennsylvania Co. or its partner in the transaction. The latter company must be bound by all the acts of the Lake Shore Co. pertaining to the use of the car. If, however, such relation did not exist, then the owner of the ear was a bailor or lessor and the employer of Snyder was a bailee or lessee. Can it be said that a bailor or lessor is not liable to a person who receives injuries by reason of the defective condition of the thing let, when such defects existed at the time of the letting? We think not. Schindelbeck v. Moon, 32 Ohio St., 264.
    It is claimed that the Pennsylvania Co. is not liable because the casual connection between the delivery of the ear at Erie and the receipt of the injury was broken. He claims that the Pennsylvania Co. cannot be held responsible for anv defects which might “subsequently appear” in said car.
    That the Pennsylvania Co. must have anticipated the result which did come cannot be doubted. Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U. S., 469.
    Snyder was not guilty of contributory negligence.
    Where one is placed by the negligence of another, in the face of impending peril and becomes bewildered or is compelled to choose between two hazards, and the injury results to him after he makes a choice, acting as a prudent person might under the circumstances, the fact that had he acted otherwise or chosen the other hazard he would not have been hurt, will not establish contributory negligence. South Covington & Cin. St. Ry. Co. v. Gare, 84 Ky., 267; Stokes v. Saltonstall, 13 Peters, 181; Voak v. Northern Central R. R. Co., 75 N. Y., 320; Wheelock v. Boston & Albany R. R. Co., 105 Mass., 203; Government Street R. R. Co. v. Hanlon, 53 Ala., 70-77; Marks v. St. Paul, Minn. & Manitoba R. Co., 30 Minn., 493; North Chicago St. R. Co. v. Louis, 35 Ill. App., 477; Penn. R. R. Co. v. Roney, 89 Ind., 453; Knowlton v. Milwaukee St. Ry. Co., 59 Wis., 278; Moore v. Central R. Co., 47 Iowa, 688 ; Coulter v. American Express Co., 56 N. Y., 585; 2 Thomp. on Neg., section 1092; Elliott on Roads and Streets, 609; Twombley v. Central Park & E. R. R. R. Co., 69 N. Y., 158; Dyer v. Erie Ry. Co., 71 N. Y., 228; Iron R. R. Co. v. Mowry, 36 Ohio St., 418; Wilson v. Northern Pac. Ry. Co., 26 Minn., 228 ; Georgia R. 
      
      R. etc. Co. v. Rhodes, 36 Ga., 645 ; Mobile R. Co. v. Ashcraft, 48 Ala., 15.
    The basis of the doctrine in question is that persons in great peril are not expected to exercise the same presence of mind as a careful and prudent man under ordinary circumstances. Such a person under like circumstances might possibly . do the same thing. (Beach on Contrib. Neg., section 14). The question, therefore, in such cases is not what a prudent person would do under ordinary circumstances, but what he might have done under the circumstances of peril present in the case. In the case at bar Snyder had no notice whatever of the danger until he was in a position too late to escape from it. As heretofore stated, the jury has found that Snyder was not guilty of contributory negligence and this court is not called upon to review that finding.
   Williams, C. J.

It is not disputed that the plaintiff below received the injury of which he complains, in the manner alleged in his petition; nor is it contended there is any sufficient ground for disturbing the finding of the jury that the plaintiff in error was guilty of the negligence with which it is charged. One contention of the plaintiff in error is, that its negligence was not the proximate cause of the injury; that the casual connection was broken by the intervening negligence of the Lake Shore Company which, it is claimed, is alone responsible for the injury.- An instruction to that effect, which the court was requested to give in charge to the jury was refused, and in that way the question is presented. The record discloses that the Empire line of freight cars, to which the car in question belonged, was owned and operated by the plaintiff in error for the transportation of through, freight collected on its Philadelphia & Erie Division, over the road of the Lake Shore Company, from its connecting point at Erie, to stations on its line and on other connecting lines, under a traffic arrangement between the companies by which theywere to share inthe earnings of the transportation according to the distance the cars should be hauled over their respective roads. Under the arrangement, the plaintiff in error, before delivering its cars to the Lake Shore Company, was to have them properly inspected and put in safe condition for hauling; and it was also understood that the company receiving the cars should have them inspected when received. The company hauling a car was required to provide the oil and other supplies for keeping it in running condition, and to repair any damage done to the car while in its possession; all other repairs to be at the expense of the plaintiff in error. The car in question, when delivered to the Lake Shore Company to be hauled over its road, was defective and unsafe in the respects described in the petition, which a proper inspection would have discovered ; and the negligence of the plaintiff in error consisted in the failure to make such inspection, and delivering the car to the Lake Shore Company without having first put it in a safe condition for transportation; while the negligence of the latter company was its omission to have the car properly inspected, and hauling it in its defective condition. The liability of the latter company for that negligence cannot well be denied. It was under no obligation. to receive and place in charge of its employes a car with defective and dangerous equipments; -and the rule which requires the observance of due care on the part of the employer in providing machinery and appliances that are safe and suitable for the use of the servant in the course of his employment, is not limited to such as are the property of the employer. It is not any the less obligatory upon a railroad company, for the protection of its employes, to see that foreign cars run over its road are not so defective as to be dangerous, than it is to see that its own are free from dangerous defects. But it does not follow that because the Lake Shore Company is liable for the damages sustained by the plaintiff below, the plaintiff in error may not be, also. To relieve the latter from the consequences of its negligence, it is not enough that the act of the Lake Shore Company was nearest in the order of events to the injury, nor that without it the injury would not have occurred; to have that effect it must have been the efficient, independent, and self producing cause, disconnected from the negligence of the plaintiff in error. The casual connection is not broken, “if the intervening event is one which might in the natural course of things be anticipated as not entirely improbable, and the defendant’s negligence is an essential link in the chain of causation.” Sherman and Red-field on Neg., section 32 (4th ed.) It is not essential to the liability of the plaintiff in error that its negligence should be the sole cause of the injury; but if that result was produced by the negligence of both companies, each contributing a necessary condition to the result, either, or both, might be held . responsible at the election of the party injured; neither could claim exoneration on account of the fault of the other. The negligence of the plaintiff in error was undoubtedly the primary cause. If it had not furnished the defective car, the injury could not have occurred. Neither could it, if the Lake Shore Company had not run the ear over its road; and it might not have done so, if that company had made a proper inspection of the car. But it was the act of that company in hauling the car over its road, that contributed to bring- about the injury, rather than its failure to have it properly inspected; for if the car had not been so moved, no injury could have happened, however negligent the inspection may have been. The most that can be claimed from the omission of the proper inspection by the Lake Shore Company is, that it failed to cure or remove the previous negligence of the plaintiff in error, and thereby interrupt the consequences which were likely to, and did flow from it. That failure cannot with propriety be said to have broken the connection between the negligence of the plaintiff in error and the injury resulting from the use of the defective ear, or to have been the self operating cause of the injury. That the car would be hauled over the road of the Lake Shore Company, was contemplated by both of the companies when it was delivered; it was' delivered for that purpose. The plaintiff in error knew it could not be so hauled without the services of brakemen and other employes of the company hauling it, and ordinary prudence would suggest that if it furnished a defective car, or failed to observe due care in providing cars that were reasonably safe and fit for the service contemplated, those employes might, and probably would, suffer injuries in consequence. The jury might therefore properly find, as they did under instructions to which no exceptions were taken, that while the negligence of the Lake Shore Company was a contributing condition to the injury sustained by the plaintiff below, the negligence of the plaintiff in error was the culpable and proximate cause.

It is further claimed that the plaintiff in error was under no obligation or duty to the employes of the Lake Shore Company to exercise care in the inspection of cars furnished the latter company, or in making repairs necessary to have them in proper condition; and, as both ■ companies were mutually in fault with respect to the car in question, so that neither could be made liable to the other, the plaintiff below was without remedy against the Pennsylvania Company, because his injury was received while acting exclusively under the employment of the Lake Shore Company; the servant being bound, it is argued, by the act of the master. We think this position is not tenable. It was not necessary to the liability of the plaintiff in error that a contractual relation should exist between it and the plaintiff below, nor that the injury should be one resulting from the violation of a duty it owed the general public. Whenever' a person should reasonably apprehend that,- as the natural and probable consequences of his act or neglect, another will be placed -in a situation of danger of receiving an injury, a duty of exercising due care to prevent such injury arises; and if the injury results from the failure to use such care, a liability to the person injured will generally'exist, in the absence of any other controlling fact. As said in Bishop, on Non-contract Law, section 528, “One’s responsibility for his acts is not limited to their immediate effects. He is liable also for their natural and probable consequences. * * * Nor is it material whether those consequences come from the acts alone, or from them and subsequent independent forces operating with them, provided those forces are of a sort reasonably to be anticipated. ’ ’ The test is to be found in the probable injurious consequences to be anticipated, and not in the number of subsequent events and agencies that may arise. It has already been observed that the traffic arrangement between these two railroad companies contemplated that cars furnished bj^ the plaintiff in error to the other company would be handled by the employes of the company receiving them, and a prudent person would reasonably anticipate and foresee that such employes would be exposed to the danger of receiving injuries in handling a defective car so furnished, or one with defective appliances ; and, therefore, the plaintiff in error owed a duty to such employes operating a train in which such a car might be placed, which was to use reasonable care in making inspection of the cars and putting them in safe condition, before they should be placed in charge of the employes. The services of such employes being necessary to accomplish the transportation intended, the delivery of a car to be transported over the road, amounts to an invitation to the employes to go upon and handle it, and an assurance that they may safely do so in the course of their employment in transporting it to its destination. The case of Moon v. Northern Pacific Railroad Company, 46 Minn. 106, is quite like the one before us in its features thus far considered, and presents substantially the same questions. That is a well-considered case, and the decision is in harmony with our view of the law.

Another g-round urged for the reversal of the judgment is, that the evidence, without conflict, establishes negligence on the part of the defendant in error which contributed to the injury he sustained. Without entering into a general review of the evidence relating to the manner in which the injury was caused, or the conduct of the defendant in error, it is sufficient to say that, without his fault, and while in the performance of his duties in handling the oar in question, he found himself in a situation of danger, on account of a defective ladder attached to the car which, at the time, he was attempting to ascend in order to manage the brakes as his duties required. The ladder had one broken round and was loose and shaky; but that was not discovered by him until after he had got up on it and was in the effort to reach the top of the car. While engaged in that effort, and in a very brief time after he stepped on the ladder, he was thrown to the ground and injured. It is claimed that when he discovered the danger he was in, he should have stepped to the ground, and that he could have done so with safety. By his failure to do that, it is contended, he brought about the injury, or at least contributed to produce it. When confronted with his peril, two ways of escape would naturally be suggested: one to leap from the car to the ground, and the other to do as he did, strive to reach the top of the car. It is not certain that the adoption of the former course presented by the alternative would have proven better than the latter; it might seem so from a deliberate survey of the situation after the disaster had occurred; but when it is considered that it occurred in the darkness of the night, while the car was in motion, without opportunity of accurate observation of the condition of the ground, it is little more than conjecture that the defendant in error could, or would, by leaping- to the ground, have escaped injury. And, in the exigencies of the situation in which he was placed, it could neither be expected nor required that he should exercise the same deliberate judgment that prudent persons would exercise-where no danger is present, nor make the most judicious choice between hazards. The question in such case is not what a careful person would do under ordinary circumstances, but what would he be likely to do, or might reasonably be expected to do in the presence of the existing peril; and is one of fact for the jury. Measuring the conduct of the defendant in error by this rule, the jury have found he was not guilty of contributory negligence, and our duty does not lead us into an inquiry to ascertain on which side the preponderance of the evidence may be found.

Judgment affirmed.  