The carrier, whether of goods or passengers, is liable for an injury to strangers, if this be caused by the negligence of the driver or conductor; (v) as if he runs over one, or otherwise injures him, while he is walking on a public way. (w) And where such an injury results in death, no action is given by the common law to the personal representatives of the deceased; (x) and if one be given by statute, the damages therein must be wholly confined to pecuniary injuries, and will not extend to mental suffering occasioned to the survivors. (y) Under the statute of New York it has been held, that it is immaterial whether such death is instantaneous or consequential. (z) Also, that, under the provisions of the statute, a husband cannot recover for the loss of his wife's services to him, he not being of kin to his wife in a legal sense. (a) Nor is it a defence for the carrier that the road was out of order, nor that the reins or harness broke, for he should have had better ones. (b) But if the person injured caused the injury, in some degree, by his own negligence, and was capable of ordinary care and caution, he cannot recover damages, unless the negligence of the party who did the injury was so extreme as to imply malice; (c) but it is no defence to the carrier that the

(uu) Vinton v. Middlesex R. R. Co. 11 Allen, 304.

(v) Stables v. Eley, 1 C. ft P. 614; Sleath v. Wilson, 9 id. 607; Joel v. Morrison, 6 id. 601. And if a horse and cart are left in the street, without any person to watch them, the owner is liable for any damage done by them, though it be occasioned by the act of a passer-by, in striking the horse. Illidge v. Goodwin, 5 C. & P. 100. See also Lynch v. Nurdin, 1 Q. B. 29.

(w) Boss v. Lytton, 5 C. ft P. 407; Cotterill v. Starkey, 8 id. 691; Hawkins 9. Cooper, id. 473; Wynn v. Allard, 6 W. & S.524.

(x) Carey v. Berkshire R. R. Co. 1 Cash. 475.

(y) Blake v. Midland Railway Company, 10 E. L. & E. 437; s. c. 18 Q. B. 93. Under the New York statutes the remedy is restricted to an injury done within the State. Whitford v. Panama B. B. Co. 23 N. Y. (9 Smith) 466.

(z) Brown v. Buffalo ft S. L. R. R. Co. 22 N. Y. (8 Smith) 191.

(a) Dicheno v. New York Central R. R. Co. 23 N. Y. (9 Smith) 168.

(b) Cotterill v. Starkey, 8 C. & P. 691; Welsh v. Lawrence, 2 Chitt 262.

(c) Woolf v. Beard, 8 C. ft P. 373-Cotterill v. Starkey, id. 691; Wynn v. Allard, 6 W. ft S. 624; Cook v. Champlain Transportation Co. 1 Denio, 91; Brownell v. Flagler, 6 Hill (N. Y.), 282; Barnes v. Cole, 22 Wend. 188; Rathbun ft is due care for the conductor to attempt to remove such a passenger while the car is in motion. Murphy v. Union Railway, 118 Mass. 228.

negligence of a third party contributed to cause the damage. (cc) And here, * also, as to the question of negligence on the part of the carrier, the rule, making it the duty of the plaintiff to prove affirmatively that he was not guilty of negligence, cannot be considered as universal. (d)

So the carrier is liable for injury done to property by the wayside, unless he can discharge himself from want of care. (e) But a railroad company, authorized by the legislature to use locomotive engines, is not responsible for damage by fire occasioned by sparks from an engine, if every precaution has been taken and every approved means adopted to prevent injury from fire, and its servants are not guilty of negligence. (f) But if negligent, v. Payne, 19 id. 399; Perkins v. Eastern Railroad Company, 20 Me. 307; May v. Princeton, 17 Met. 442; Parker v. Adams, 12 id. 415; Tonawanda R. R. Co. v. Munger, 6 Denio, 266; s. c. 4 Comst 349; Brown v. Maxwell, 6 Hill (N. Y.), 592; Trow v.Vt. Central R. R. Co. 24 Vt. 487; N. Y. & E. R. R. Co. v. Skinner. 10 Penn. St. 298. See also White v. Winnissim-met Co. 7 Cush. 160; Willetta v. Buffalo & Rochester R. R. Co. 14 Barb. 686; Murch v. Concord Railroad Corporation, 9 Foster (N. H.)t 9; Damont v. N. O. & Carrollton R. R. Co. 9 La. An. 441; Kerwhaker v. Cleveland C. & C. R. R. Co. 8 Ohio St. 172; Galena & Chicago Union R. R. Co. v. Yarwood, 16 DL 468; Richardson v. Wil & Man. R. R. Co. 8 Rich. L. 120. And see the instructive case of Railroad Company v. Aspell, 23 Penn. St. 147. Willoughby v. Horridge, 16 E. L. & E. 437; s. c. 12 C. B. 742. But if the injury be voluntary and intentional, the party committing it will be liable, notwithstanding the party injured was guilty of negligence. Therefore, where the plaintiff, being the owner of a lamb, allowed it to escape into the highway, where it mingled with a flock of sheep which the defendant was driving along; and he, knowing this fact, made no attempt to separate the lamb from the flock, but delivered the whole to a drover in pursuance of a sale previously made, by whom they were taken off to market; it was held, that these facts were sufficient to authorize a verdict in favor of the plaintiff for the value of the lamb, though it was not included in the sale to the drover, and the defendant received nothing on account of it Brownell v. Flagler, 6 Hill (N. Y.), 282. See also Tonawanda R. R. Co. v. Munger, 6 Denio, 256, 267, per Beardsley, C. J., Cook v. The Champlain Transportation Co. 1 id. 91;

Wynn v. Allard, 5 W. &, S. 624; Rathbun v. Payne, 10 Wend. 809; Clay v. Wood, 6 Esp. 44. So where the party injured is a child of tender years or otherwise incapable of ordinary care and caution. Lynch v. Nurdin, 1Q. B. 20. In this case the defendant left his horse and cart unattended in the street. The plaintiff, a child seven years old, got upon the cart in play; another child incautiously led the horse on; and the plaintiff was thereby thrown down and hurt It was held, that the defendant was liable in an action on the case, though the plaintiff was a trespasser, and contributed to the injury by his own act. This case is confirmed by Birge v. Gardiner, 10 Conn. 607, and Robinson v. Cone, 22 Vt. 218. But see contra, Hartfield v. Roper, 21 Wend. 616, confirmed by Brown v. Maxwell, 6 Hill (N. Y.), 692, and Monger v. Tonawanda R. R. Co. 4 Comst. 840. See Blakeman v. B. & E. Railway Co. 02 Eng. C. L. 1086, as to the liability of a railroad company for mischief caused by the breaking of a crane, which they had lent gratuitously, knowing it to be unsafe. Fox v. Town of Glastenbury, 27 Conn. 204.