dissenting.
I am not prepared to. agree to the proposition that Rasmussen’s act in protruding his head from the car window was so clearly an act of criminal negligence that reasonable men might not differ with respect to it. What he did was, I think, nothing more than people generally do under like circumstances. His conduct was the product of a sudden impulse — the spontaneous expression of an emotional nature. It was not, of course, prudent conduct; calculation and provident foresight were wanting, but it did not amount to a flagrant or reckless disregard of the con-. sequences which were certain or likely to ensue. Risk was incurred, but from the standpoint of a person who knew nothing about the appliance that caused the accident, it was a slight and not a serious risk. It was hardly sufficient, tailing human nature as it is, to impose restraint upon the social instinct which prompts one to give greeting to a friend. In dealing with ■ cases of negligence, judges are, I am disposed to think, too much inclined to take themselves as standards by which to measure the conduct of all classes and conditions of men. Commensurate care in a given case is apt to be what they would have done. They are accustomed to travel and understand the dangers of the road; they are unaffected by novel situations; their native enthusiasm has been chilled by contact with the world; they hold themselves in leash and wave no improvident salutations to acquaintances or friends. They are well-poised, circumspect and deliberate; they *70are exemplars of correct conduct, but, hoAvever much it is to be regretted, tbeir Avays áre not the ways of exultant youth nor of “the man Avith the hoe.” In my opinion Chicago, B. & Q. R. Co. v. Martelle, 65 Neb. 540, went too far, but this case goes still farther. Carriers of passengers, as was observed in Chicago, R. I. & P. R. Co. v. Zernecke, 59 Neb. 689, are insurers; they charge for the risk they assume and there is consequently no reason why the law imposing liability upon them0.should be enforced Avith reluctance. In actions brought to recover indemnity courts have, it seems to me, no call to put a harsh construction upon the plaintiff’s conduct in order to temper the statute Avith natural justice. Criminal negligence, as the term is used in section 3, article 1, chapter 72, Compiled Statutes (Annotated Statutes, 10039), means such negligence as amounts to “a flagrant and reckless disregard of one’s oavu safety, and the wilful indifference to the injury liable to folloAv.” Chicago, B. & Q. R. Co. v. Hague, 48 Neb. 97. It is true that in the case cited it Avas held that the act of a passenger, Avho, after he had been expressly warned that the freight caboose, in which he Avas riding, was standing on a high bridge, and that he must not attempt to leave the car, stepped off at the rear and fell, receiving injuries from which death resulted, Avas “criminal negligence.” In the next case, Chicago, B. & Q. R. Co. v. Hyatt, 48 Neb. 161, criminal negligence is defined as “gross negligence such as amounts to a reckless disregard of one’s OAvn ■safety and a Aidlful indifference to the consequence liable to folloAv,” and in 'that case the action of the plaintiff, in jumping from a moving train, Avas held, not to be such negligence, and the case was distinguished from Chicago, B. & Q. R. Co. v. Landauer, 36 Neb. 642, because in the latter case the train Avas moving rapidly and the act of jumping off was obviously and necessarily perilous and showed a wilful disregard of the injury which was liable to follow. In the Chollette case it was held that the question of negligence in stepping off a moving train was properly left to the jury, and the judgment against the company was *71affirmed. A great many cases, including the foregoing, are cited by plaintiff in error in its elaborate brief, but it is conceded that the definition of “criminal negligence” in Omaha & R. V. R. Co. v. Chollette, 33 Neb. 143, 147, has been followed ever since. Some of the cases cited from other jurisdictions hold that the placing of the passenger’s person outside the window of a moving train is evidence of negligence; some that it is conclusive evidence of negligence ; and some that under the particular circumstances indicated, it is gross negligence; but none of them have any relation to the interpretation of that Nebraska statute which makes the carrier an insurer of its passenger against injuries inflicted upon him while he is such, unless such injury arises from his own “criminal negligence” or from “violation of some express rule or regulation of the road,” brought expressly to his attention. It is not thought that any of these cases furnish any precedent for the determination of this one. None of the circumstances, under which the courts have held that the mere fact of placing a part of the person out of the window of a moving train is gross negligence, appear here. ' The injury was caused by a heavy iron ring suspended - on a crane for the delivery of a mail-sack to and the reception of one from another corresponding crane on a moving train. The appliance, which seems to be no longer in use, was called “The’ Fleming Mail Catcher and Deliverer Crane.” It is not necessary to describe it further than to say that by means of a post set at a distance of about three feet from the side of a passing car, and a swinging arm attached to the post, an iron ring could be let down to come within eight inches of a passing car to be there caught by a like arm extending from the mail car, and the ring and mail bag drawn on board the car without stopping the latter. The machine was not of a kind to attract the notice of a traveler, as when not in use the swinging arms were drawn up and when properly in use and the arms drawn down, they would be caught and thrown up by the crane on the mail-car before the passenger coaches came by.
*72The train on which the plaintiff’s intestate was riding carried no mail and, if his attention had been called to the matter, he would have naturally supposed that the crane was drawn up properly and no ring in dangerous proximity to the train window, but there is nothing to indicate any knowledge on his part of the presence of the ring or of anything to warn him that his conduct was more dangerous than it would be on the open prairie. It would seem, therefore, that his conduct was not the “criminal negligence” necessary to relieve defendant from its statutory liability for the safety of its passengers.
■ Plaintiff in error cites Anderson’s definition for gross negligence: “The omission of that care which even inattentive and thoughtless men never fail to take of their own property or interests.” It is defined in Black’s Law Dictionary as: “The want of that care which every man of common sense, how inattentive soever, takes of his own projrerty. The omission of that care which even inattentive and thoughtless men never fail to take of their own property.” The last sentence is also Bouvier’s definition, citing Jones, Bailments.
Beyond doubt, the question here, as in the case of Chicago, B. & Q. R. Co. v. Hague, supra, is not whether this act of Rasmussen in putting his head out of the window seems to this court to be gross negligence, but whether it was so manifestly of that character that reasonable men can not deem it anything else. I am entirely unable to say so, and am unable to say on this ground either that there is no cause of action in the petition, or that none is proved by the evidence.