liability of lunatics for their torts tends to secure a more efficient custody and guardianship of their persons. Again, if parties can escape the consequences of their injurious acts upon the plea of lunacy, there will be a strong temptation to simulate insanity with a view of masking the malice and revenge of an evil heart. The views here expressed are sustained by the following authorities: Cooley on Torts, 99-103; 2 Saunders's Pleading and Evidence, 318; Shearman and Redfield on Negligence, sec. 57; Weaver v. Ward, Hob. 134; Morse v. Crawford, 17 Vt. 499; 44 Am. Dec. 349; Behrens v. McKenzie, 23 Iowa, 333; 92 Am. Dec. 428; Krom v. Schoonmaker, 3 Barb. 647; also cases in note to said case in Ewell's Leading Cases, 642. In the light of the principles thus announced, we find no error in the ruling of the circuit court upon this subject.

Plaintiff in error also contends that there should have been no recovery in this case, because of alleged contributory negligence on the part of Mrs. Sholty. It is claimed that she knew of her brother-in-law's madness, and that he was armed when she started to go from the house towards the stable, and that by doing so, under the circumstances, she was guilty of a want of proper care and prudence. We forbear to express any opinion as to whether or not there could be any such thing as contributory negligence in a case of this kind, and under such circumstances as are herein disclosed. It is sufficient to say that there is a considerable amount of evidence in the case bearing upon this question. If it could be properly raised, the facts necessary to do so were fully developed in the testimony presented to the court by the plaintiff below. Therefore, plaintiff in error should have submitted to the trial court a proposition, to be held as law, embodying his theory of contributory negligence as applicable to the facts of the case, in accordance with section 41 of the Practice Act: Hurd's Rev. Stats. 1885, p. 904. He did not do so, and hence the question is not properly before us for our consideration. The judgment of the appellate court is affirmed.

LUNATIC IS ANSWERABLE FOR TRESPASSES AND TORTS in all cases where liability to the action is not dependent on the intent with which the wrongful act was done: Farr v. John, 92 Am. Dec. 428; Morse v. Crawford, 44 Id 349; Lancaster Bank v. Moore, 78 Pa. St. 407. But in actions for slander the rule is otherwise, because the intent with which the slanderous words were spoken is of the gravamen of the charge, and proof of insanity may always be received in mitigation of damages: Dickinson v. Barber, 6 Am. Dec. 58; Yeates v. Recd, 32 Id. 43; Horner v. Marshall, 5 Munf. 466; Bryant v. Jackson, 6 Humph. 199.

HOLDER OF TICKET OVER RAILROAD, WHO BY MISTAKE TAKES PASSAGE ON WRONG TRAIN, IS PASSENGER so far as to entitle him to protection against the negligence of the railroad company.

OBEDIENCE BY PASSENGER TO DIRECTIONS OF CONDUCTOR OF TRAIN, GIVEN WITHIN SCOPE OF HIS AUTHORITY, WHERE SUCH OBEDIENCE WILL NOT EXPOSE the passenger to known or apparent danger which a prudent man would not incur, is not contributory negligence, although it may result in bringing injury upon him.

WHERE PASSENGER ENTERS WRONG TRAIN THROUGH HIS OWN MISTAKE, AUTHORITY OF CONDUCTOR, AS REPRESENTATIVE OF CARRIER, TERMINATES when a safe alighting-place is provided, and the passenger has voluntarily left the train in safety. The company is not bound by the general directions of the conductor, in the nature of advice and information, as to what course the passenger shall pursue after he has left the train, and is not liable for an injury received by the passenger while acting upon such directions.

R. D. Marshall and W. C. Forrey, for the appellant.

B. F. Claypool, J. H. Claypool, J. S. Duncan, C. W. Smith, and J. R. Wilson, for the appellee.

By Court, ELLIOTT, J. The complaint of the appellee alleges that his intestate bought a ticket at Connersville, entitling him to a passage on the defendant's trains to Cincinnati, Ohio; that his intestate was a stranger in Connersville, unacquainted with the points of the compass at that city; that, on the day he purchased his ticket, he went to the appellant's depot, intending to take passage on its east-bound train, which,

according to schedule time, passed Connersville at 8:47 P. M.; that the east and west bound trains usually passed at that hour at Connersville; that the night on which the appellee's intestate intended to take passage was dark; that at a short distance to the west of appellant's station the track passed over a highway and a canal, upon an elevated trestle-work several hundred feet in length; that at a short distance west of the trestle-work there was a switch known as Salter's switch; that on the night on which the intestate intended to take passage for the east, the train from the west was behind time, and was ordered to wait at Salter's switch for the train from the east; that the latter train was ordered to move forward and pass at that point; that the conductor of that train had notice of these orders; that on the arrival of the train from the east the intestate, supposing it to be the east-bound train, entered it, and immediately thereafter it departed; that shortly after the departure of the train the conductor informed him that he was on the wrong train, and stopped the train a short distance west of the trestle-work which spanned the canal and highway; that "he carelessly and negligently directed the deceased to get off, and at once to walk back over the railroad track to Connersville, informing him that if he, the deceased, did so" he would reach the station in time to take passage on the east-bound train; that at the time the conductor gave these directions he knew of the existence of the trestle-work, and that the east-bound train would, in a very few minutes, pass over that part of the track lying between the place where the deceased was directed to leave the train and the station at Connersville; that there was no highway or foot-passage between those points by which the deceased could return to the station except by passing along the railroad track; that the deceased was ignorant of the existence of the trestle-work, and of the fact that the east-bound train would soon pass over the trestle-work; that the deceased undertook to obey the directions of the conductor, and, without fault or negligence on his part, was struck and killed while walking along the track built upon the trestle-work, on his way to the station at Connersville.

Where a person has bought a ticket over a railroad, and by mistake takes passage on the wrong train, he is a passenger so far as to entitle him to protection against the negligence of the company: Columbus etc. R'y Co. v. Powell, 40 Ind. 37; Railway Accident Law, 215; International etc. R. R. v. Gil

AM. ST. REP., VOL. II.-10

bert, 22 Am. & Eng. R. R. Cas. 405; 64 Tex. 536; 2 Wood's Railway Law, 1047.

The deceased was therefore entitled to be treated as a passenger while on the train, and a high degree of practicable care to protect him from injury was due to him from the carrier.

Where the directions of the conductor are within the scope of his authority, and obedience to them will not expose a passenger to known or to apparent danger which a prudent man would not incur, obedience by the passenger is not contributory negligence, although it may result in bringing injury upon him.

In Pool v. Chicago etc. R'y Co., 53 Wis. 657, and 56 Id. 227, the doctrine was stated somewhat more broadly, and it was said, in speaking of the passenger: "He relied-and we think he had the right to rely on the judgment of the person in charge of the car, presuming that by following his directions in the matter he would not expose himself to any unnecessary or unusual peril."

It was held in Hanson v. Mansfield etc. R'y & Trans. Co., 38 La. Ann. 111, 58 Am. Rep. 162, that one who rides on the locomotive, under the direction of the "engineer or conductor," is not guilty of contributory negligence, and the court said: "It has also been frequently held that taking an unusual place on a train, which ordinarily might be considered contributory negligence, cannot be so regarded where the place is occupied by the direction or permission of the conductor."

We cannot concur in this extreme view of the law. Our conclusion is, that a passenger may safely rely on the judgment of those placed in charge of the train, where it is not plainly open to his observation that reliance will expose him to danger that a prudent man would not incur, but that he cannot rely on their judgment where it would expose him to a risk that a reasonably prudent man would not assume. An American author says: "If the danger is obvious, and such as a reasonable man would not have incurred, the passenger must not assume the risk": 2 Wood's Railway Law, 1121. It was said by this court in Louisville etc. R. R. Co. v. Kelly, 92 Ind. 371, 47 Am. Rep. 149, that "our own cases hold that passengers are warranted in obeying the directions of the agents and servants of the carrier, unless such obedience leads to known danger which a prudent man would not encounter." This doctrine is supported by our own cases, and by the great

weight of authority: Jeffersonville R. R. Co. v. Swift, 26 Ind. 459; Pennsylvania Co. v. Hoagland, 78 Id. 203; Lake Erie etc. R'y Co. v. Fix, 88 Id. 381; 45 Am. Rep. 464; Terre Haute etc. R. R. Co. v. Buck, 96 Ind. 346; 49 Am. Rep. 168; Filer v. New York etc. R. R. Co., 49 N. Y. 47; 10 Am. Rep. 327; Filer v. New York etc. R. R. Co., 59 N. Y. 351; St. Louis etc. R. R. Co. v. Cantrell, 37 Ark. 519; 40 Am. Rep. 105; Fowler v. Baltimore etc. R. R. Co., 18 W. Va. 579; Hickey v. Boston etc. R. R. Co., 14 Allen, 429; Railroad Co. v. Aspell, 23 Pa. St. 147; 62 Am. Dec. 323; Philadelphia etc. R. R. Co. v. Boyer, 97 Pa. St. 91; Indianapolis etc. R. R. Co. v. Horst, 93 U. S. 291; St. Louis, I. M. & S. R'y Co. v. Person, 49 Ark. 182; Beach on Contributory Negligence, 72; 2 Wood's Railway Law, 1121; Hutchinson on Carriers, sec. 535.

Under the rule we have stated, the deceased cannot be considered guilty of contributory negligence upon the case made by the complaint; for it is averred that he was ignorant of the danger to which the directions of the conductor exposed him, and was free from fault and negligence. As he was free from fault and ignorant of danger, and as the danger was not open to his observation, he cannot be regarded as having done what a reasonably prudent man would not have done in relying upon the directions of the appellant's conductor, if the directions were given by the conductor while acting within the line of his duty.

We come now to a question of much more difficulty, and that is, Were the directions of the conductor given while acting within the scope of his authority? It is an elementary rule that a principal is not bound by the acts of his agent, unless they are performed within the scope of the authority actually or ostensibly conferred upon him. This rule applies, of course, to railroad corporations as well as to natural persons: Railway Accident Law, 99.

The conductor of a passenger train is undoubtedly clothed with extensive authority. In discussing the subject, Chief Justice Ryan said: "Indeed, as that fictitious entity, the corporation, can act only through natural persons, its officers and servants, and as it of necessity commits its trains absolutely to the charge of officers of its own appointment, and passengers of necessity commit to them their safety and com fort in transitu, under conditions of such peril and subordination, we are disposed to hold that the whole power and authority of the corporation, pro hac vice, is vested in these