Page:Federal Reporter, 1st Series, Volume 4.djvu/783

MILLES ». U. P. ET. 00. 769 �It says that îi was "a hand or push car." It is necessary that the plaintiff should describe the car with more particu- larity than that, because a hand-car may be one thing and a push-car quite another, and it ia impossible to determine the question of contributory negligence without knowing Bome- thing about the character and construction of the car ; because, of course, it is a very material question whether there was any apparatus on the car itself whioh could be used by persons riding upon it to stop it, or to retard its movement. If it was what is known as a push-car, and if those cars are used ordi- narily merely for carrying something, being propelled by some one walking by them and pushing, and if it had no brakes or apparatus for stopping or retarding its movements, then it was negligence to get aboard of it and start down grade with- out any means of controlling it. I say, then, in "the first place, the petition ought to describe the car. To say it was a hand or push car is not enough. �In the second place, if the car on which plaintiff was riding when injured was known as a push-car, and had no brakes or apparatus for controlling its movements, and if the plaintiff, knowing this, got on the car and rode down the grade, this was negligence, and the plaintiff cannot recover. The petition does not show very clearly, to say the least, whether the car was without brakes or not. But I apprehend, from what coun- sel have said, that it had no brakes. �Another proposition is this : In order to recover, plaintiff must allege that cars such as the one he was riding in when injured are usually supplied with brakes. Of course he can- not recover unless it appears that he went aboard of this car Bupposing that there was some mode or way by which per- sons, when traveling on it or riding in it, could retard its movement or stop it. If he knew from havihg ridden up in the car, or having seen others push it as he came up the track, that it could be controlled only by walking along by it and holding it back, and, knowing that, he got into it with a number of other people to ride on a down grade, he took bis chances. It was a clear case of contributory negligence. �v.4,no.9— 49 ����