Thomas Johnson Michie.

A treatise on the law of carriers (Volume 4) online

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Abstract and argumentative in-
structions, p. 2931.
Assuming facts, p. 2940.
General rule, p. 2931.
Ignoring evidence or facts in

case, p. 2937.
Instances where evidence did

not support charge, p. 2935.
Instances where evidence suffi-
cient to support charge, p.
Undue prominence to portions
of evidence, p. 2537.
Argumentative instructions, p. 2931.
Argumentativeness, p. 2916.
Assault and battery, p. 2958.

Instructions, cont'd.

Care as to persons accompanying

passengers, p. 2999.
Cars, p. 2968.
Causing passengers to fall from

train, p. 2972.
Charge taken as a v>?hole, p. 2918.
Clearness, p. 2916.
Collisions, p. 2975:

Burden of proof of negligence

of carrier, p. 2978.
Collision with animal or ob-
struction on track, p. 2978.
General rules, p. 2975.
Illustrations, pp. 2975-2979.
Companies or persons liable, p.

Condition of carrier's premises, p.

Conformity to pleadings and issues,
p. 2921:
Authorizing recovery for injury
in manner other than that de-
clared on, p. 2924.
Charges held to confine recov-
erty to grounds alleged, p.
Complaint composed of more

than one count, p. 2929.
General rule, p. 2921.
Giving effect to facts not in

the case generally, p. 2922.
Hypothesizing verdict on less

than law requires, p. 2929.
Illustrations, pp. 2930-2931.
Instances where charge author-
ized recovery on grounds not
within pleadings, p. 2925.
Must limit carrier's negligence

to that alleged, p. 2923.
Narrowing or withdrawing is-
sue, p. 2928.
Permitting defense not relied

on, p. 2928.
Separate causes of action
blended — Surplus allegations,
p. 2930.
Singling out one of a combi-
nation of circumstances, p.
Contributory negligence of plain-

tifif, p. 2957.
Correct, p. 2914.
Credibility of witness, p. 3009.
Curing error, p. 2943:

Obviating error by other in-
structions, p. 2943.
Request covered by other in-
structions, p. 2945.
Request omitting reference to
acts of negligence relied on,
p. 2945.
Subsequent correct instruction
given at request of party
complaining, p. 2946.
Subsequent explanation of
charge, p. 2946.
Damages, pp. 3009, 3015.
Definiteness, p. 2916.



Instructions, cont'd.

Definition or explanation of what

constitutes negligence, p. 2949.
Degree of care required, p. 2950:

See "Degree of Care Required."
Derailment, p. 2979:

General rules, p. 2979.
Illustrations, pp. 2979-2982.
Presumption and burden of

proof, p. 2980.
Presumption where cause of

accident shown, p. 2981.
Presumption where derailment
of special freight due to ex-
plosion, p. 2982.
Duty to explain issues, p. 2920.
Ejection of passengers:

See "Ejection of Passengers."

See "Elevators."
Fair, p. 2914.
Form and requisites, pp. 2914, .3011.

Actions for ejection, p. .3017.
Full, p. 2914.

General consideration, p. 2914.
Gross negligence, p. 2949.
Harmless error, p. 2942.
Invading province of jury, p. 2940.
Jerks and jolts of trains or cars,

p. 2973.
Language, p. 2915.
Liability to persons accompanying

stock, p. 2999.
Management of conveyance, p. 2970.
Misleading, p. 3011.
Misleading instructions, p. •:?916.
Presumptions and burden of proof,
^ p. 3002:
Express reference to burden of

proof, p. 3006.
General rule, p. 3002.
Illustrations, pp. 3002-3008.
Must not authorize presump-
tion of negligence from mere
fact of injury, p. 3006.
Requisites of charge generally,
p. 3003.
Providing safe place or means for
alighting, p. 2996:
Car run by approaches, p. 2997.
General rules, p. 299C.
Invitation to alight, p. 2997.
Theories of case, p. 2997.
Proximate and remote cause, p.

Requests for instructions, p. 2919:
Mddification and correction by

court, p. 2919.
Necessity, p. 2919.
Relation of carrier and passenger,
p. 2946:
Existence of relation of carrier

and passenger, p 2046.
Illustrations, pp. 2047-2948.
Right to and propriety of instruc-
tions general! J', p. 2914.
Servants, p. 29.")7.
Setting down passengers, p. 20'-<4:
Assisting passengers to alight,
p. 2986.

Instructions, cont'd.

Setting down passengers, cont'd.
Burden of proof of reasonable
opportunity to alight, p. 2985.
General rules, p. 2984.
Illustrations, pp. 2984-2989.
Passing usual stooping place,

p. 2986.
Starting or moving train while
passenger alighting, p.
Curing error, p. 2990.
Degree of care generally, p.

General rule, p. 2989.
Misleading instructions, p.

Modification of requests, p.

Passenger encumbered witli

bundles, p. 2993.
Reasonable time to alight,

p. 2992.
Signal to start, p. 2995.
Theories of case, p. 2991.
Sufiiciency and safety of means of

transportation, p. 2963.
Superfluous words or phrases, p.

Taking up passengers, p. 2965:

Degree of care reouired, p.

Illustrations, pp. 2965-2966-2967.
Reasonable time for passenger

to board, and assistance, p.


Starting or moving car while
passenger boarding same, p.
Terminology, p. 2915.
Vehicles, p. 2968.
Wantonness and willfulness, p.

Weight and sufficiency of evidence,

p. 3008.
Words and phrases, p. 2915.
Insults, p. 2017:

See "Assault and Battery."
Allegation of negligence, p. 2606.
Assault provoked by passenger, p.

Damages, p. 3064.
Declaration, petition or complaint,

p. 2606.
Evidence, p. 276S.
Exemplary damages, p. 3070.
Lial)ility of carrier for insult to
passenger, p, 205():
General rule, p. 2056.
Good faith no excuse, p. 2058.
Injury l)y omission to protect,

p. 2057.
Provocation, etc.. p. 2058.
Rudeness and oppression re-
sulting in injury, p. 2057.
What constitutes al)usive lan-
guage or insult, p. 2058.
Presumptions and burden of proof,
p. 2701. •





See infra, "Liability as Insurer."
Interstate and foreign commerce:

See "Interstate and Foreign Com-
Intervening tracks:

See infra, "Safe Place to Board
or Alight and Intervening

See "Licensees, Trespassers, In-
truders, etc."

Inviting passenger on engine, p.

Invitation to alight, pp. 2228. 2259.
See infra, "Misleading Invita-
tions to Alight."
Instructions, p. 2997.
Questions of law and fact, p. 2906.
Issues, p. 2634:

Additional issues by subsequent

pleadings, p 2641.
Affirmative matter in avoidance, p.

As dependent on allegations as to

injury, p. 2639.
As dependent on allegations of
negligence or cause of injury, p.
As dependent on allegation of re-
lation, p. 2635.
As dependent on claim for dam-
ages, p. 2639.
Corfstruction terms, words, etc.,

used, p. 2639.
Elimination of issues by dismissal,

p. 2642.
Generally, p. 2634.
Issues as affected by plea or an-

svi'cr, p. 2639.
Issues raised by plea, p. 2641.
Nature of action, p. 2635.
Plea of general issue, p. 2640.
Plea of not guilty, p. 2640.
Under amended petition, p. 2641.
lerks and jolts of trains or cars, p.
Allegation of negligence, p. 2603.
Basis of liability, p. 1989.
Declaration, petition or complaint,

p. 2603.
Duty of the railroad company, p.

Evidence, p. 2756.
Freight train, p. 1992.
Illustrations, pp. 1992, 1993.
Injuries to persons in charge of

stock, p. 1990.
In making up trains, p. 1990.
In recoupling trains which break

apart, p. 1998.
In starting, stopping, and runnmg

trains, p. 1991.
Instructions, p. 2973.
Management of train in general, p.

Negligent handling of engine, p.

Jerks and jolts of trains or cars, cont'd.
Passenger moving forward for pur-
pose of alighting, p. 1996.
Passengers and freight, p. 1989.
Person attempting to board mov-
ing train, p. 1998.
Presumptions and burden of proof.

p. 2690.
Question for jury, p. 1989.
Questions of law and fact, p. 2890:
Conflicting evidence, p. 2891.
General rule, p. 2890.
Suddenly starting conveyance,

p. 2892.
Suddenly stopping conveyance,

p. 2892.
Unusual or unnecessary, p.
Sudden acceleration for purpose of

passing stopping place, p. 1998.
Sudden lerks, p. 1988.
Weight and sufficiency of evidence,
p. 2804.

See infra, "Jerks and Jolts of
Trains or Cars."
Jostling, p. 2016.
Landlord and tenant:

Liability of lessor, p. 2087:
General rule, p. 2087.
Lease illegal or ultra vires, p.

Leases under statutory author-
ity, p. 2088.
Lessor liable for negligence of

lessee, p. 2087.
Lessor's liability to its own

passengers, p. 2088.
Liability for indignities of fel-
low passengers, p. 2088.
Liability of lessor of steam-
boat, p. 2089.
Latent defects, p. 1845.

See infra, "Landlord and Tenant.'
Leaving conveyance:

See "Contributory Negligence."
See infra, "Alighting from Train or
Leaving premises previous to transpor-
tation, p. 1525.
Leaving train:

Persons at station to assist or lake
leave of departing passengers,
or to meet incoming passen-
o^ers :
See "Licensees, Trespassers,
Intruders, etc."
Leaving train or car before reaching
See "Relation of Carrier and

Liability, p. 1652:

In general, p. 1679.
Liability as affected by statutes, p.

Allegation, p. 2610.

California, p. 1746.



Liability as affected by statutes, cont'd.

Declaration, petition or complaint,

p. 2610.
Georgia, p. 1747.
Mississippi statute, p. 1T58.
Montana statute, p. 17G1.
Nebraska, p. 1764.
Texas, p. 1764.
Texas statutes, p. 1778.
Liability as insurer, pp. 1861, 1718.

Absence of contributory negligence

immaterial, p. 1603.
Accidents caused by forces of na-
ture, p. 1690.
Concurring acts of negligence, p.

Distinguished from carriers of

goods, p. 1684.
General rule, p. 168].
Injuries due to acts of fellow pas-
sengers, p. 1692.
Injuries due to hidden defects, p.

Injuries due to acts of strangers,

p. 1691.
Injuries not arising from negli-
gence, p. 1687.
Injuries unavoidable by human care

and foresight, p. 1689.
Intervening cause, p. 1693.
Liability based on negligence, p.

Nebraska statute making railroads
liable as insurers, p. 1764:
Application of the statute, p.

Enforcement of the statute by
other than Nebraska courts,
p. 1766.
Effect of the statute, p. 1764.
Provisions of the statute, p.
Not an insurer, p. 3 682.
Passenger vessel distinguished from

carrier of goods, p 1685.
Source of liability for injuries oc-
curring to passengers, p. J 692.
Statute, p. 1686.
Liability for acts and omissions of
servants, p. 2034:
See infra, "Insults."
Acts within scope of employmev.t,

p. 2034.
Application of general master and

servant law, p. 2034.
Assaults upon passengers:

See infra, "Assault and Bat-
Carrier's liability, p. 2034.
Disease communicated by employee

to passenger, p. 2063.
Duty to employ competent serv-
ants, p. 2034.
Extent of contract, p. 203.').
False imprisonment and arrest:

See "False Imprisonment and
General rule, p. 2034.

Liability for acts and omissions of serv-
ants, cont'd.
Liability for manner of execution

of trust, p. 2035.
Misconduct or negligence of em-
ployees, p. 2034.
Mistake of judgment, p. 2036.
Negligence of servants, p. 2036.
Scope of employment, p. 20!U:

See infra, "Assault and
Acts calculated, or intended, to

alarm passengers, p. 2068.
Acts which are or are not
within scope of emplovment,
p. 2048.
After termination of contract,

p. 2067.
Assisting passenger on or off

train or car, p. 2065.
Causing unnecessary delay in

transportation, p. 2070.
Conductor, p. 2064.
Directing or permitting pas-
senger to alight from moving
train, p. 2066.
Directing passenger to render

assistance, p. 2069.
Falling against, or jostling, pas-
sengers, p. 2069.
False imprisonment and arrest,

p. 2059.
False imprisonment of passen-
gers, p. 2070.
Giving information to, or in-
structing, passengers, p. 2067.
Inviting or directing passenger
to alight at dans^erous place,
p. 2065.
Making overcharge for ticket,

p. 2070.
Meaning of the term, p. 2064.
Pushing or pulling passenger

off train or car, p. 2066.
Refusing passenger entrance to

car, p. 2069.
Station agent's information as

to routes, etc., p. 2068.
Unintentional assavilts upon

passengers, p. 2068.
What acts are within scope of
employment, pp. 2048, 206 K
Test as to liability, p. 2035.
Who are servants, p. 2072.
Who are servants:

Assistants engaged by serv-
ants, p. 2076.
Construction companies, p.

Employees off duty, p. 2078.
General rule, p. 2072.
Independent contractors, p.

Persons in charge of sleeping,

or palace, cars, p. 2074.
Pilots, p. 2078.
Postal agents, p. 2078.
Servants invested with author-
ity of peace officers, p. 2075.



Liability for acts and omissions of serv-
ants, cont'd.
Who are servants, cont'd.

Servants employed jointly by

several masters, p. 2077.
Servants of lessors or lessees,

p. 2077.
Servants of receivers, p. 2078.
Surgeon employed by carrier,
p. 2078.
Wilful acts of servants, pp. 2038,
2041, 2063.
Absolute undertaking of the

carrier, p. 2039.
Acts without scone of employ-
ment, p. 2040.
As dependent upon authoriza-
tion, ratification and repudia-
tion of act, p. 2040.
Assaults upon passengers:

See infra, "Assault and
Common law rule, p. 2038.
False imprisonment and ar-
See "False Imprisonment
and Arrest."
Female passengers, p. 2041.
General rule, p. 2038.
Insult to passenger, p. 20.'5fi.
Motive of the servant, p. 2039.
Nature of liability, p. 2041.
Protection of passenger, p.
Liability for negligence, p. 1693:
Assumed risk, p. 1693.
Carrier engaged in public service,

p. 1694.
Degree of care required:

See infra. "Degree of Care Re-
General rule, p. 1693.
Liability as affected by statute:
See infra, "Liability as Af-
fected by Statute."
Liability based on negligence, p.

Limitation of liability:

See infra, "Limitation of Liabil-
Proximate and remote cause:

See infra, "Proxmiate and Re-
mote Cause."
Slightest risk, p. 1694.
What constitutes negligence, p.


See "Licenses, Trespassers. In-
truders, etc."

Tunnels, p. 1982.

Unlighted platform, p. 2269.
Lighting cars, p. 1938.
Lighting depots;

Instructions, p. 2963.
Lighting station houses, platforms and
grounds, p. 1797:

Questions of law and fact, p. 2873.

Limb or other part of person protrud-
ing from car:
See "Contributory Negligence."
Limitation as to time for which valid:

Delay caused by carrier, p. 1678.
Limitation of lialiility, p. "'^t' :

See "Limitation of Liability."
Authority of n-i^c*-pr fn lit-nit liabil-
ity of carrier for injury to
servant, p. 2114:
Contract between express com-
pany and railroad company,
p. 2105.
General rules, p. 2104.
Circus employees, p. 2102.
Consideration for agreement, p.

Construction of contracts limiting

liability of carrier, p. 210.").
Contractual exemption from statu-
tory penalty, p. 2093.
Duty to protect passengers, p.
Absence of knowledge of pas-
senger's peril, p. 2027.
Acts for which carrier liable.

p. 2033.
Performance of duty, or inabil-
ity, to protect, p. 2032.
Employees of pullman cars, p 2102.
Express messengers, p. 2100.
Extraordinary care, p. 2092.
General rule, p. 2091.
Limitation of liability in pass given

emplovee, p. 2100
Mail clerks, p. 2101.
Negligence, p. 2091.
News a.gents, p. 2102.
Passengers received on freight

trains', p. 2093.
Passes, p. 2094:

Degrees of negligence, p. 2095.
Drover's pass, p. 2097:

Carrier can not limit lia-
bility in drover's pass, p.
Consideration, p. 2099.
Degree? of negligence, p.

Drover as passenger for

hire, p. 2097.
Power to limit liability in

drover's pass, p. 2097_.
Reasonable regulations

binding, p. 2099.
Return pass, p. 2099.
Stipulation that drover is
employee of carrier, p.
Limitation of liability in pass
given as mere gratuity, p.
Pass issued in violation of law.

p. 2096.
Reduced rates or passes based
upon some consideration, p.
Statutory provisions, p. 2096.
Using nontransferable pass of
another, p. 2097.



Limitation of liability, cont'd.

Power to limit liabilit}^ as to pas-
sengers for hire, p. 2091.
Power to limit liability as to per-
sons engaged in certain employ-
ments, p. 2100.
Reduced rates or passes based upon

some consideration, p. 2097.
Statutes, p. 2094.
Statutory power to limit liability, p.

Sufficiency of assent of passenger
to limitation of carrier's lia-
bility, p. 2103.
Passenger for hire, p. 2103.
Persons carried gratuitously, p.
Weight and sufficiency of evidence,
p. 2837.
Livery stable keepers, p. 1488.
Loss or injury to goods, p. 769.
Mail agent, p. 1503.
Mail cars:

Heating, p. 1939.
Mail clerks, pp. 1523. 1574.
Mail contractor, p. 14S9.
Mail pouches thrown on platform, p.

Management of conveyance, p. 1978:
See infra, "Vehicles."
Absence of driver or mntorman

from post of duty, p. 19S3.
Acts in emergency, p. 1979.
Amount of diligence dependent

upon hazard, p. 1978.
Application of rule regardless of

nature of conveyance, p. 1979.
Avoiding dangers encountered dur-
ing the journey, p. 1981.
Care required as to tp'egraph lines

^^A oop-ators, p. 2015.

See infra, "Collisions."
Crowded trains or cars, p. 1979.
Effort to escape danger, p. 2766.
Evidence, pp. 2756, 2796, 2802.

Admissibility in general, p. 2756.
Description of accident, p. 2759.
Explanatory of passenger's ac-
tions, p. 2759.
Illustrations, pp. 2756-2760.
Immaterial evidence, p. 2758.
Jerks, jolts, sudden starting,

sudden stopping, p. 2758.
Mixed or accommodation trains,

p. 2757.
Opening and closing doors, p.

Overturning of road vehicle, p.

Rebuttal, p. 2760.
Speed, p. 2757.
To show passenger's condition,

p. 2760.
Under allegation of collision, p.

Under allegatif)n of derailment,
p. 2760.

Management of conveyance, cont'd.

Evidence to rebut presumption of
negligence arising from injury, p.
General rule, p. 1978.
In approaching switch apparently

misplaced, p. 1982.
In passing through tunnels, p. 1982.
In running trains or cars on wrong

track, p. 1982.
Instructions, p. 2970.
Jerks and jolts of trains or cars:
See infra, "Jerks and Jolts of
Trains or Cars."
Moving disabled trolley car, p. 1983.
Negligent handling of engine, p.

Omission of signals required by

statute, p. 1983.
Operation in customary or ordinary

manner not proper test, p. 1979.
Presumptions and burden of proof,

p. 2690.
Proximate cause, p. 1707.
Questions of law and fact, p. 2883:
Car steps, p. 2884.
Collision, p. 2894.
Conflicting evidence, p. 2885.
Crowding cars, p. 2887.
Derailment, p. 2898.
Elevators, p. 2901.
Failing to keep gates closed, p.

Illustrations, pp. 2883-2887.
In general, p. 2883.
Leaving open trap door, p. 2884.
Leaving open vestibule door, p.

Nonsuit or direction of verdict,

p. 2886.
Passing other vehicles or ob-
jects, p. 2893.
Rate of speed, p. 2888.
Stumbling over fellow passen-
ger's suit case, p. 2885.
Sudden lurches, jerks, or jolts,

p. 2890.
When passenger's hand caught
in door, p. 2885.
Running trains or cars in a manner
calculated to alarm passengers,
p. 1981.
Speed of trains or cars:

See infra, "Speed of Trains or
Street railways, p. 1979.
Upsetting coach, p. 2015.
Weight and sufficiency of evidence
as to negligence in management
of conveyances in general, pp.
2796, 2802.
Mandamus, p. 1500.
Manufacturers, pp. 1823, 1847.
Master and servant:

Sec infra. "Liability for Acts
and Omissions of Servants."
Assaults upon passengers:

See infra, "Assault and Bat-




Master and servant, cont'd.

Declaration, petition or complaint
in action for injury, p. 2607:
Action for ejection of passen-
ger, p. 2624.
Allegations as to agent or serv-
ant at fault, p. 2607.
Authority of agent or servant,

p. 2608.
Joint defendants, p. 2610.
Ejection of passengers:

See "Ejection of Passengers."
Evidence as to competency of em-
ployees or care in selecting them,
p. 2766.

See infra, "Insults."
Limitation of liability:

Authority of master to limit
liability of carrier for in-
jury to servant, p. 2104:
Contract between express
company and railroad
company, p. 2105.
General rules, p. 2104.
Limitation of liability in pass given

employee, p. 2100.

See "Mistake."
Questions of law and fact, pp. 2847,
2851, 2867:
Abusive and insulting lan-
guage, p. 2868.
Acts of carrier's employees, p.

Number and efficiency of em-
ployees, p. 2868.
Operation of street car with-
out conductor, p. 2869.
Repelling assault by passen-
ger, p. 2868.
Measure of damages:

See infra, "Damages."
Meeting passengers:

See "Licensees, Trespassers, In-
truders, Etc."

Mental suffering, pp. 2017, 3049, 3063,
3064, 3083:
See infra, "Damages."
Misinformation, p. 1663:

See infra, "Information."
Declaration, petition or complaint,

p. 2573.
Proximate and remote cause, p.

Misleading invitations to alight, pp.
1918, 2228, 2259:

Announcing name of station, p.

Announcing station and stopping
train, p. 1922.

Announcing station and stopping
train, as required by law, at
crossing, p. 1926.

Duty to warn passengers of dan-
ger, p. 1927.

Evidence, p. 2747.

Misleading invitations to alight, cont'd.
General rule, p. 1918.
Injury to passenger by movement

of train, p. 1925.
Injury to passenger in consequence
of dangerous character of stop-
ping place, p. 1923.
Liability for injury, p. 1919.
Next station, p. 1923.
Stopping train, p. 1921.
What constitutes, p. 1919.

See "Mistake."
Mixed train:

See infra, "Freight or Mixed
"Most exact" care. p. 1720.
Moving train or car:

See infra, "Alighting from Moving
Train or Car;" "Boarding Mov-
ing Train or Car."
Nature of liability in general, p. 1679.

See infra, "Accommodations
and Duties during Transit;"
"Allegations as to Negli-
gence and Cause of Injury;"
"Companies and Persons Li-
able;" "Degree of Care Re-
quired;" "Duty to Protect
Passengers;" "Liability for
Acts and Omissions of Serv-
ants;" "Liability for Negli-
gence;" "Management' of
Conveyance;" "Receiving and
Discharging Passengers."
Assumption of risk, p. 2113.

See infra, "Vehicles."
Companies and persons liable:

See infra, "Companies and
Persons Liable."
Concurrent negligence:

Injury due to concurrent neg-
See infra, "Companies and
Persons Liable."
Contributory negligence:

See "Contributory Negligence."
Degree of care required:

See infra, "Degree of Care Re-
Delay in transportation:

See infra, "Delay in Transpor-
Evidence to rebut presumption of
negligence arising from in-
See "Presumptions and Burden
of Proof."
Liability for acts and omissions of
See infra, "Liability for Acts
and Omissions of Servants."
Liability for negligence:

See infra, "Liability for Negli-



Negligence, cont'd.

Liability for negligence of manu-
facturer or builder, p. 1847:

Defects in vehicles purchased
of another, p. 1823.

Degree of care required l)y
carrier, p. 1847.

Illustrations, pp. 1847, 1848,
1849, 1850.

Liability of carrier in general,
p. 1847.
Limitation of liability;

See infra, "Limitation of Lia-
Persons liable:

See infra, "Companies and
Persons Liable."
Pleading, p. 2668.
Questions of law and fact, pp. 1713,

Receiving and discharging passen-
See infra, "Receiving and Dis-
charging Passengers."
^ See infra, "Roadbed and Track."

Stations and stopping places:

See "Stations and Stopping

See infra, "Roadbed and Track."
Variance, p. 2653.

See infra, "Vehicles."
What constitutes negligence, p.
New trial:

Excessive damages, pp. 3058, 3073.
Excessive damages for ejection, p.

Announcement of stations or stop-
ping places:

See infra, "Announcement of
Stations or Stopping Places."

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