(dissenting):
This is a suit brought in the Circuit Court of Lewis county on the 29th of August, 1891, by John II. Fisher, by bis next friend, against the AVest Virginia & Pittsburg Railroad Company for injury inflicted on plaintiff, by defendant’s negligence, while being carried as a passenger on its train. Atrial by jury on plea of not guilty resulted in a verdict for plaintiff of three thousand and five hundred dollars for which the court gave judgment having overruled defendant’s motion -for a new trial, and this writ of error was allowed.
As to the material facts, there was but little if any conflict of testimony. But giving the plaintiff the vantage ground of his verdict, where and if such conflict exists, the facts are in substance as follows:
On the 18th day of October, 1890, defendant ran a local mixed train — freight and passenger car — from Weston to Buckhannou; but one passenger car, and that in the rear. Plaintiff and his father John S. Fisher, bought tickets, and were passengers. The father had a seat, but the car was crowded full of people; but little, if any, sitting-room. There.was standimg room. Perhaps a seat could have been found, but plaintiff was drinking — was intoxicated. lie did not enter the car, but rode standing out on the front platform. He was under the influence of whiskey; at least seemed to the conductor to beso; according to his own testimony, had whiskey with *383him and took two or three drinks on the platform. -The father knew that plaintiff had been drinking some, and being uneasy went out to where his son was on the front platform and told him he had better come into the car Plaintiff said ho would do so in a few minutes; but, as he did not do so, the father requested the conductor to go out and bring him in. The conductor stood around for a short time, and then went out on the platform where plaintiff was. lie came back without him; told John 8. Fisher, the father, that he was in no danger; “that, as long as they did not stagger, they were all right.” The conductor states in his testimony that the platform is regarded as a very dangerous position to occupy, and that the rules of his company required him to make plaintiff come into the car; and if he refused it was his duty to stop the train, and put him off. Plaintiff remained on the platform ; and about seven and one half miles out on the road, about half way back to Buckhannou, in running at ten or twelve miles an hour round a sharp curve, plaintiff was thrown out, or fell out, to the left. The hind truck ran over both feet, making amputation of both feet, back to the heels, necessary. He was taken up, and carried to his home at Buckhannon, where this surgical operation was at once properly performed ; leaving him a bad cripple for life, unable to stand or walk without crutches and artificial feet, which he has at a cost of one hundred dollars. He was about twenty years of age, earning about one dollar and twenty five cents per day. lie can now do nothing requiring him to walk or to stand ; and the left foot, not being healed, will, in all likelihood, soon require some further amputation. His condition shows that he was intoxicated to such a degree as not to realize the danger of falling off, to which he was exposed. He stood upon the step,-holding with one hand. He was plainly to some extent unconscious of his exposure to the danger of falling off, and did not anticipate and therefore was heedless of the accident likely to ensue. The conductor noticed his intoxication and telling him,, that it was against the rule to ride there, asked him to go in. The brakeman noticed, when he got on the train, that he had been drinking; he acted like he was intoxicated; asked *384him to go into the car. And, as we have already seen, the father, seeing that his son had not come into the car, and knowing his condition felt nneasy for his safety and requested the conductor to go out and bring him in. The conductor went out-on the platform where the plaintiff- was, and came back without him, and told Johu S. Fisher, the father, as already stated, that plaintiff" was in no danger. “As long as they did not stagger, they were all right.”
The foregoing statement of facts is intended to present “the exact anatomy of the case.” As is usual in such cases, this one has opened up a wide field for discussion, as appears from the cases and books cited. Still, in my view, in the attitude in which it is here presented, giving the plaintiff the vantage ground of a verdict and judgment in his favor in an action for negligence against a carrier of passengers conceded to be to some extent in fault, its determining factors both of law and fact ought to lie within a narrow compass.
Four grounds of error are assigned by plaintiff in error : No. 1. The court erred in rejecting a special plea. No. 2. In giving to the jury the two instructions asked by plaintiff". ETo. 3. In modifying defendant’s instructions Nos.' 4 and 5. No. 4. In overruling defendant’s motion for a new trial.
ETo. 1 : This special plea averred, in substance, that at the time of the accident and injury complained of the Baltimore & Ohio Railroad Company was the lessee, owner and operator of the West Virginia & Pittsburg Railroad, by virtue of a deed of lease before that time duly signed, sealed and delivered ; that if there was any cause of action, as averred, the Baltimore & Ohio Company, alone, ought to be made defendant — praying judgment that the wi’itand declaration might be quashed, etc.; that is, that, without reference to the merits, the suit has been brought against the wrong person, in an improper manner, as to the party made defendant. This, if true, would go in support, of the general issue, as it contradicts the declaration on a material point. Nor does it in its nature belong to that class of defences which are good in bar or abatement, at the option of the defendant. A judgment on the plea for defendant *385tbat the writ and declaration be quashed must, in its nature, in such a case, if it amounts to anything, be 'conclusive of the right of action against defendant, either alone or conjointly with another; for it would not have been good if it had averred as the ground that the Baltimore & Ohio Company was a joint doer of the thing complained of, for, in such case of tort, plaintiff may sue one or both. It was intended, no doubt, to give notice of one of the grounds of defence, or rather to raise in advance the question of defendant’s liability under the state of facts averred in the plea. As a plea in abatement, it was excepted to for want of affidavit; for, by the statute (section 39, c. 125) “no plea in abatement or plea of non est factum shall be received, unless it be verified by affidavit.” But the true question on the merits is settled by the case of Ricketts v. Railway Co. 33 W. Va. 433, 436 (10 S. E. Rep. 801): “We think it may be stated, as the just result of the decided cases; and on sound principle, that a railroad corporation eau nof, without distinct legislative authority, by lease or any other contract, turn over to another company its road, and the use of its franchises, and thereby exempt itself from responsibility for the conduct and management of the road.” For, if the defendant railroad corporation still conducts the business of the road as owner, it is liable ; if as agent of the lessee, it is liable for its torts ; and if the lessee conducts the business in that name, and under the defendant’s charter, then, according to the averments contained in the plea, it would be liable under that charter and in that name. There was no error in rejecting the plea.
Error No. 2 : The two instructions given for plaintiff against the objection of defendant are as follows: No. 1 : “The court instructs the jury that, in the transportation of passengers, a railroad company is bound to exercise more than ordinary care and diligence, and is liable for the slightest negligence, against which prudence and foresight could have guarded.” No. 2: “The court instructs the jury that although the plaintiff may have been guilty of negligence, and although that negligence may in fact have contributed to the injury, yet if they find from the evidence that the defendant, after having notice of plaintiff’s dan*386gerous exposure, did not exercise ordinary care and diligence to prevent bis injury, the plaintiff's negligence will uot excuse nor relieve the defendant from liability.” Both are taken from the case of Carrico v. Railway Co., 35 W. Va. 389 (14 S. E. Rep. 12). It is conceded in argument that these instructions do perhaps propound the law correctly ; but the contention is that they are abstract, not being based upon any evidence in the cause.
The court, at the instance of defendant, gave ten several instructions, which, as modified, were not objected to, apd which are as follows :
No. 1 : “The jury are instructed that the plaintiff, as passenger on the defendant’s car, as a matter of law, is presumed to have taken upon himself all the risks necessarily incident to that mode of travelling ; and if the jury believe from the evidence that without the fault of the defendant, but by inevitable accident, plaintiff-was injured, the jury should find for the defendant.”
No. 2: “The court instructs the jury, as a matter of law, that a passenger upon a railroad train takes all the risk attending that mode of travel, except such as may be caused or incurred by the negligence of the railroad company or its servants; and, unless such negligence by the defendant is shown by the evidence, the jury should find for the defendant.”
No. 3 : “The court instructs the jury that, as a matter of law, a regulation af a railroad company which forbids passengers to stand upon the platform while the car is in motion is a reasonable and proper rule ; and if a passenger, in violation of such regulation, unnecessarily exposes himself, he does so at his own peril.”
No. 6: “The court instructs the jury that railroad companies are only required to exercise due care that a passenger is not injured through their fault, and they are not required to exercise such supervision over him as absolutely prevents him from being injured by his own fault.”
No. 7 : “The court instructs the jury that a railroad company has no right or authority, under the law, to impose upon its passengers any restraint, even to enforce its reasonable rules.”
*387No. 8 : “The court instructs the jury that, in detrmin-iug the question of whether the plaintiff was guilty of contributory negligence, they may take into consideration the condition of the plaintiff at the time; that is, if he were intoxicated at the time of the injury, or partly so, they may take this fact into account, in determining whether he was guilty of contributory negligence.”
No. 9: “If the jury find that the injury compained of was contributed to by plaintiff’s own negligence, and did not result by act of defendant purposely, intentionally, wantonly, maliciously, or recklessly done, they should find for the defendant.”
No. 10 : “The plaintiff*, to recover, must have observed ordinary care to avoid the injury, and, if he does not do so, he can not recover.”
One of the. lines of argument and presentation of their case made by plaintiff’s counsel is as follows : The evidence showed there was only one passenger-car on the train. There was no mail car or baggage car, but mail and baggage were piled in one end of the passenger-ear, and that was full of people. Thai defendant was negligent in not providing a proper place, and in not publishing or making kuovvu its rule against riding on the platform, and that although plaintiff’s intoxication may have contributed to his taking his place and riding on the front platform, and, together with such dangerous exposure, may have caused his falling off, yet defendant had notice of his dangerous exposure, and that he was under the influence of liquor, yet did nothing to prevent such dangerous exposure to injury, and, so far from enforcing the rule of the company which prohibited the conductor from allowing any one to ride on the platform, and made it his duty to make the passenger go in, or get off, the conductor misled the father, who otherwise might have had the plaintiff (his minor sou) brought in out of such danger.
The other line of argument of plaintiff’s counsel proceeds upon the theory, that their caséis made out without reference to the one crowded car and the failure of the defendant to publish its rule against riding on the platform. It seems to be as follows : The conductor knew that plain*388tiff bad been drinking and was under the influence of liquor; that he was on the platform in that condition; that it was a dangerous place for a sober man — much more, for one intoxicated. The conductor knew that the rules of his company prohibited him from allowing any one to ride on the platform, in consideration of its being a dangerous place. He knew it was his duty to get plaintiff to go in, and on his refusal to stop the train and put him oft'. In other words, if the conductor had done his plain and simple duty, he would have prevented the accident, and the injury resulting therefrom.
The case was evidently tried, and the jury instructed, on the theory that it involved the doctrine of contributory negligence, as laid down and applied in the case of Carrico v. Railway Co., 35 W. Va. 389 (14 S. E. Rep. 12) (see point 7) viz. that if the defendant, after he has discovered the plaintiff’s exposure to danger, refuses or neglects to practice any care or precaution to prevent the injury, he will be liable; for instructions No. 1 and No. 2 given for the plaintiff are taken literally from the Carrico Case, and the qualifications appended by the court to defendant’s instructions No. 4 and No. 5 are the same as plaintiff’s instruction No. 2.
In that case there was evidence tending to show that plaintiff" received his injury by riding with his elbow out of the window, beyond the line of the body of the car, by reason of which it was struck and broken in two places by a pile of stone recently quarried, and'piled up close to the track for the purpose of being loaded and transported. There was also evidence tending to prove that defendant, by its employes, had knowledge of the stone piled up close to the track, and saw plaintiff’s elbow protruding, but failed to give him any warning. The court held that it is legal negligence for a passenger to ride in a fast-going passenger coach with his arm protruding out of the window, and beyond the line of the body of the car” (point No. 5) and that “if the defendant, after he has discovered the dangerous exposure, refuses or neglects to practice any care or precaution to prevent the injury, he will be held liable” (point No. 7). The case was sent back, retried, and again *389appealed; and in the same case, at this term, the same doctrine has been again laid down. See same case, supra, p. — (19 S. E. Rep. 571.)
In that case the evidence showed that plaintiff, Carrico, was riding with his elbow in the open window at the time of the accident, hut, as to whether it was protruding or not, the direct evidence was somewhat conflicting; and, in addition to that conflict, it was also conflicting as to the fact of the conductor having, discovered plaintiff’s dangerous expiosure of his arm before the accident, but there was enough for the case to go to the jury.
In this case three questions of fact were involved: (1) "Was the plaintiff riding on the platform iu such a state of intoxication as to be, in an obvious degree, unconscious or heedless of his danger ? (2) If so, was such fact in any way brought home lo the knowledge of the conductor? (3) If the conductor had such knowledge of plaintiff’s dangerous exposure, did he refuse or neglect to practice the proper care or precaution to prevent the injury? If so, the court, by its instructions, told the jury that the defendant would be liable.
I have carefully re-read the record, and the briefs, and, in my view, no other material facts were involved. These the jury on the evidence found for the plaintiff, and the court approved the finding. . I do not well see how the jury could have done otherwise, unless on the supposition that the conductor had done all to bring him in, or put him out of danger, that was incumbent on him to do; and this is a question of law, for what he did do in that behalf appears affirmatively and without dispute.
What, then, is the duty of carriers of passengers for hire? For this state the question was authoritatively auswered in 1854, in the case of Farish v. Reigle, 11 Gratt. 697; again, in 1859, in the case of Railroad Co. v. Sanger, 15 Gratt. 230. They are bound to use the utmost care and dilligeuce of cautious persons to prevent injury to passengers and are bound to carry their passengers safely, so far as human care and foresight can go, being liable for injuries resulting from the slightest negligence. Pennsylvania Co. v. Roy, 102 U. S. 451. See, also, Railroad Co. v. Wightman, (1887) *39029 Gratt. 431, 445. The law, iti tenderness to liuman life and limb, holds railroad companies liable for the slightest negligence, and compels them to repel by satisfactory proofs any imputation of such negligence. They are held to the highest degree of practical care under the circumstances presented, and to this standard a philanthropic age must adhere. See Thomp. Carr. Pass. p. 197, § 7, notes, et seq.; Ingalls v. Bills, 9 Metc. (Mass.) 1; (43 Am. Dec. 346, notes).
Although the term “ordinary care,” properly qualified and explained, may be made to measure perhaps more accurately the amount of care, foresight, diligence, and skill required in the particular case, according to its facts, yetthe term “extraordinary care” may have a wholesome effect; for one is then more apt to bear iu.mind the care exacted of a carrier in so perilous a business, and not to confound this particular ordinary care with ordinary care in general, and especially to note that the distinction involved may be one of kind, as well as of degree; so the common mind understands it. I believe it is not claimed that the conductor used the utmost care. I do not see how it can, by this record, be said that he performéd his whole duty, waswholly without fault in the matter, whatever be the degree of negligence such fault may imply, or the degree of diligence exacted.
But it is answered that plaintiff' can not recover because he was guilty of contributory negligence. lie was negligent in becoming intoxicated, for that was his own voluntary wrong. He was negligent in riding upon the platform, for the conductor told him it was against the rules of the company. And although there was but one car, and that was full of people, with one end used to carry baggage, yet, no doubt, he could have found standing room inside, if not a seat. Why did he not go in? lie was in a plainly obvious degree unconscious of the danger of riding on the platform in his condition and therefore heedless of it. We need not consider to what extent the conductor had discovered these facts by his own observation ; for there is not a particle of evidence, direct or inferential, in contradiction of what the father of the youug man said to him and of the *391request he made. The knowledge then imparted, if not known before, and the request of the father then made, imposed upon the conductor a new duty. This new duty he violated ; not only'willfully neglected to perform it, but in all likelihood prevented the father from securing its performance in some other way by lulling his apprehensions of the danger to which his son'was exposed, soon resulting in the accident that caused the injury. In such a case plaintiff’s negligence was not the proximate cause in whole or in part of the injury, but the remote cause; the inducing cause; the condition which gave rise to the new duty, the existence of which the new duty from its nature, necessarily presupposed. If plaintiff’s negligent exposure to danger imposes upon the conductor the new duty to take the proper care o'r precaution to prevent injury resulting from it, such negligence of plaintiff can not at the same time be, in whole or in part, the proximate cause of the injury, the happening of which as the result of plaintiff’s negligence, the new duty exists only to avoid or avert. See Downey v. Railroad Co. 28 W. Va. 732, 737.
Such a test of the proximate cause, in whole or in part, of the injury, is, in my view, just as much out of place in this case as it would have been in the Carrico Case, supposing the plaintiff in that case to have been riding with his elbow protruding out of the window, and, in the language of Dr. Bishop (Noncont. Law, § 467) “Reverse the result in numberless plain cases,” from the Donkey Case (Davis v. Mann, 10 Mees & W. 545) and the case of Radley v. Railway Co. 1 App. Cas. 754, down to the case of Carrico v. Railway Co., 35 W. Va. 389 (14 S. E. Rep. 12) and the same case, supra, p- (19 S E. Rep. 571). See 2 Thomp. Neg. 1104 et seq.. Eor a discussion of the character and test of contributory negligence, see, among others, Bish. Noncont. Law, § 458 et seq.; Cooley, Torts (2d Ed.) top p. 816; Whart. Neg. 300 et seq.; Bigelow, Torts (4th Ed.) p. 332; Busw. Pers. Injur. § 97; Whitt. Smith, Neg. c. 5, p. 373; Poll. Torts, p. 374, and Append. D, p. 484; Beach, Contrib. Neg. (2d Ed.) § 7 et seq.
This duty thus cast upon the conductor by the request of the father is no relaxation of any duty of plaintiff, nor *392excuse of his negligence, but, on the contrary, a new duty, which presupposes and springs out of'such negligence of plaintiff, calling upon the conductor to anticipate and avert the injury likely to ensue therefrom. Under the peculiar circumstances of such request it is not sufficient to say, that plaintiff’s intoxication is his own voluntary and wrongful incapacitation. Apart from the father’s special request, “it is consistent, not only with common humanity, but with the legal obligations of the carrier, that if a passenger is known to be iu any manner affected by a disability, physically or mentally, whereby the hazards of travel are increased, a degree of attention should be bestowed to his safety beyond that of an ordinary passenger, in proportion to the liability to injury from the want of it.” Thomp. Carr. Pass. pp. 270, 271, § 5. But the condition of the passenger calling for it must- be made known. “It may call for special care arising from the particular danger.” Bish. Noncont. Law, § 513. See 4 Am. & Eng. Enc. Law, p. 79; Milliman v. Railroad Co., 66 N. Y. 643.
If the plain tiff had been, not a drunken passenger on the platform, but a drunken trespasser on the track, known to be unconscious or heedless of his dangerous exposure — say near Miller’s crossing where the accident occurred — it will not be denied that the duty would have arisen to take such precautions as were proper to avoid inflic-tiou injury.- Is the duty to a passenger less? The conductor is in a sense an officer of the common-law ; and that law is not only tender of life and limb, but also considerate toward human frailities, as far as maybe. And besides being the conductor and as such in command of the train, he is also an officer by statute (section 31, c. 146, Code) made so expressly that he may the more efficiently discharge his duties and meet more effectually the ex-gencies of such cases as this; and, as I read the law, it does not listen to any such excuses as are offered on his behalf. A helpless passenger on the platform and steps is certainly entitled to not less care and precaution to avert the dangerous exposure, of which he is unconscious or heedless, than the helpless or unconscious trespasser on the track. Apprehending the danger — as it appears from his own *393testimoney he did foresee and apprehended it — it was his plain duty to take the ordinary steps, such as the occasion might have required, to make the young man go in off the platform, which he could have done without trouble, or, if that could not have been done, make him get off at one of the several stations or stopping places.
I have given the facts proved fully. They correspond, in substance, with the essential facts alleged. The two instructions given for plaintiff are short, and to the point; both taken, literally, from a recent case three times argued here, and twice affirmed. The jury applied the law given them by the court to the facts as found by themselves from the evidence; and the result is a verdict by the jury, and a judgment by the court, containing, impliedly, the point of law involved correctly drawn, as I think, from the ease as made. Ten instructions were given for defendant. To two of them the court added- a qualification in order to make them consistent with the instructions given for plaintiff. If any of them are faulty — and I dare say some flaw can be found in so long a list — the plaintiff does not, and defendant can not complain. ITndersuch circumstances, it would seem hard to let the defendant’s fault spoil the plaintiff’s verdict. However, amid the confusion that seems to prevail on the subject of contributory negligence, I may be mistaken in my view of it, especially in the application attempted to be made, for here, as in other cases, but perhaps to a larger extent, the difficulty lies. The loitering on the platform of passengers is matter of common observation, and it is well understood that they do so at their own risk, and therefore I concede the danger, of giving verdicts in such cases. This one, however, has a ciearly-defiued and strongly-marked exceptional feature. On that I have, for the main, rested my view of this ease for I can not bring myself to believe that the conductor discharged the obligation of the new duty imposed upon him by his knowledge of plaintiff’s negligent exposure to danger, and the father’s request.