The question is, then, whether the plaintiff, tary, uninfluenced by any invitation expressed in jumping off the moving train, acted upon the or intended by the employés of the Company, express or implied invitation of the Company. and excused by no impending danger or necesThe evidence conclusively negatives any ex- sity of any kind, except his mere unwillingness press invitation on the part of any employé of to be carried beyond his station. It was imthe Company. It is equally clear that the offi- prudent and dangerous, and his action for the cers in charge of the train never intended or resulting injury is clearly barred by his own expected that plaintiff should get off, and cer- contributory fault. It is therefore ordered and tainly did not slack up for the purpose of letting decreed that the verdict and judgment appealed him get off. They acted precisely as they from be annulled and set aside, and that there be would have done had there been no passengers judgment in favor of defendant rejecting the deto take on or put off; for the engineer had no mand, at plaintiff's costs in both courts. signal to that effect, therefore did not know that there was a passenger to put off, aud only slackened the speed, as was his duty on all occasions, simply to allow the exchange of mails. Is it possible to construe this as implying an invitation? If so, such an invitation is given to everyone who wants to get off the train when ever it passes such a station.

Watkins, J., dissenting:

Plaintiff sued the Railroad Company for $10,000 damages for injuries he received in alighting from one of its trains while in motion, on which he was a passenger, it having passed the station to which he was ticketed without making a full stop, only slowing up to permit an exchange of mails. There was a verdict of a jury in his favor, which this court has set aside, and the substance of the majority opinion is that the act of the plaintiff was voluntary, and without invitation on the part of the officers and agents of the Railroad Company; and while the Company was, primarily, guilty of negligence in failing to carry cut its contract of safe carriage, the plaintiff was guilty of contributory negligence.

The testimony is conflicting as to the rate of speed at which the train passed the station. Nothing can be more uncertain than such estimates, especially when made by unskilled observers. The natural and probable conclusion from the circumstances is that the train only made the usual slacking of speed for exchanging the mails There was no reason why the engineer should have acted otherwise. Plaintiff thinks he would have landed safely but for the acceleration of speed which took place as The opinion puts the proposition thus: be was in the act of jumping. But this accel-"The question is, then, whether the plaintiff, eration only took place after the train had in jumping off the moving train, acted upon the passed the platform, and after the mails had express or implied invitation of the Company;' been exchanged, which was the usual and nat- and, answering that question, he opinion says: ural course. If plaintiff chose to infer an invi-"The evidence conclusively negatives any extation to jump off from these customary acts of the Company, it was a rash conclusion. One of his own witnesses testifies that he never, at any other time, saw a person jump from a train moving as fast as that one was, although he says it was moving slowly. That plaintiff's action was imprudent is shown by the result, and, as we think, by all the circumstances. His own evidence shows that he hesitated about attempting the jump, and was only determined by the question of a third person, and the Let us see what is their purport, and what are thought that otherwise he would be carried the principles they announce, and whether they · beyond his station. His act was purely volun-are a proper foundation for the opinion. In

press invitation on the part of any employé of the Company. It is equally clear that the officers in charge of the train never intended or expected hat he should get off." These dic a are the sole foundation of the opinion, and the legal proposition announced rests exclusively upon Damont v. New Orleans & C. R. Co. 9 La. Ann. 41; Pennsylvania R. Co. v. Aspell, 23 Pa. 147, and Reary v. Louisville, N. O. & T. R. Co. 40 La. Ann. 32.

vania R. Co. v. Lyons (Pa.) 25 W. N. C. 6.

gan to slow down, and that plaintiff, without wait- | jured, he cannot recover for the injury. Pennsyling for the car to stop, stepped from the car while it was in motion. Harmon v. Washington & G. R. Co. D. C.) 8 Cent. Rep. 738.

One who jumps from a train moving twenty-five miles an hour, when not invited or ordered to do so by the agents of the railroad company, or not to avoid some threatened peril, is guilty of contributory negligence barring a recovery for injuries thereby received. Jarrett v. Atlanta & W. B. R. Co. (Ga.) 9 S. E. Rep. 681.

Where a person is killed or injured by attempting to jump from a railroad train while it is crossing a public street, the negligence of the railroad company in failing to ring its locomotive bell wh le crossing the street, as required by law, while it is clearly negligence, does not contribute to the injury; and of such failure plaintiff cannot complain; and such failure is therefore no cause for a recovery by one so injured. Central R. Co. v. Harris, 76 Ga. 501.

Where sufficient time was allowed the passenger to get off, but he did not do so, and remained on the train till it started, when he jumped off and was in

A passenger who is unnecessarily and improperly upon the platform of a railroad car, knowing that the train is about to start, and who is thrown down and injured by the starting of the engine with no unusual or unnecessary jerk, cannot recover therefor. Torrey v. Boston & A. R. Co. 7 New Eng. Rep. 148, 147 Mass. 412.

The fact that he was at the time looking for some one does not excuse him in case he was injured. Ibid.

A passenger carried beyond her stopping place, who takes the risk of getting off while the train is in motion, must take the consequences, and cannot recover against the railroad company for injuries thereby sustained. Watson v. Georgia Pac. R. Co. 81 Ga. 476.

A man who attempted, while a street-car was in motion, to step off from the front of the car with a keg of lead in his hands, is guilty of negligence which will prevent his recovering for injuries which he would not have received if he had remained on the steps, although there was negligence on the

Nor is the case of Reary v. Louisville, N. O. & T. R. Co. at all applicable, because it was one of a little girl who received injuries in jumping from a train of cars while in motion. But she was not a passenger. The train was in the depot-yard being uncoupled at the time, and the conductor had gone home. The paragraph quoted from that case in the opinion was hypothetically stated, merely for the purpose of an illustration, and has no weight, as a part of that decision. Without antagonizing the opinion on its statement of facts, I propose to make an independent one.

the Damont Case none of the facts are stated. | respectfully submit that this record presents no The only question discussed was the correctness such case. of the charge of the judge a quo to the jury, and the case was remanded for a new trial. The only cases cited therein as authority were Lesseps v. Pontchartrain R. Co. 17 La. 362, and Fleytas v. Pontchartrain R. Co. 18 La. 339. Those two cases involved claims for damages sustained by the owners of slaves who had been killed, one in attempting to cross a railroad track, and the other while lying on the track, either drunk or asleep. The mere citation of those cases as authority for the decision of that case shows how imperfectly understood were the questions involved, in 1854, when that opinion was rendered; for, of course, there being between the owners of the slaves and the railroad companies no contractual relations whatever, he former were primarily guilty of gross negligence, and the latter were without fault. But the opinion quotes with approval the paragraph from Pennsylvania R. Co. v. Aspell, which was quoted in the Damont Case, bu in that extract no part of the facts of that case is recited. They are brought forward in Wood's Railway Law, at pages 1130 and 1132, and we quote them to show how very inapplied cable to this case they are. They are as follows, viz.: "Whilst the train was in motion, the plaintiff leaped from the car, though warned by the conductor and brakeman not to do so, and informed him that the train would be stopped and backed to the station. . . . If he had heeded them, he would have been safely let down, at the place he desired to stop at, in less than a minute and a half. Instead of this, he took a leap which promised him nothing but death; for it was made in the darkness of midnight, against a wood-pile close to the track, and from a car going probably at the full rate of ten miles an hour.'

On this state of facts both the Aspell and Damont Cases depend. On such a state of facts, of course, the plaintiffs were held to have been guilty of gross negligence, and the railroad companies without fault. But why should those decisions be cited in this case as sustaining the doctrine of contributory negligence? I confess I cannot understand, for I

part of the carrier. Ricketts v. Birmingham Street R. Co. 85 Ala. 600.

As a witness, the plaintiff says that, when within 200 yards of the station of his departure, there was a yoke of oxen on the track, and the speed of the train was slackened until they were frightened off. Afterwards the speed was increased a little, the whistle blown, and it was again reduced, and slowly moved by the depot platform, while the mail was being exchanged. When the train passed the depot he thought it was running slowly enough for a man to get off without danger. The only thing that prevent-'

The

him getting off safely was that the train gave a jerk forward as he got off. The train was moving all the time, but very slowly. The place where he attempted to alight was a better place to get off than that where p rsons usually get off. The ground was smoother. train was running at less than one half its usual speed. When he was passing the place where the ties, etc., were lying, he thought it was not a safe place to get off. As he hurriedly made up his mind, the train passed an open place, and he got off there, because he thought it was better ground, and he could get off there without getting hurt. Using his own language, he says: "Just at the moment that I got off, the train made a jerk. I was in the act of leaving the steps, when the jerk came. I had let go the railing, and had started to step in the direction of the way the train was going, and one foot had left the steps, and the other [was] still on the steps, and [in the act of] leaving, when the jerk came." This occurrence happened at 10 o'clock A. M.

A company is responsible for injuries resulting from acts done under the direction of the conductor. Bellman v. New York Cent. & H. R. R. Co. 42 Hun, 130.

Exception to rule of contributory negligence. The rule that it is negligence in a passenger to Negligence cannot be imputed to a passenger, aljump from a moving train is subject to exceptions, though a woman advanced in pregnancy jumped -as, when the passenger is placed in peril by the from a car to the ground in obedience to an instrucdefault or negligence of the company, or when he tion from the conductor, the train having been leaves the train, while it is in motion, by the direc-stopped at a place other than the usual platform. tion of the company's agents. Pennsylvania R. Co. v. Lyons (Pa.) 25 W. N. C. 6.

Where a boy sixteen years of age leaped from a train, upon which he was a trespasser, at a show of force displayed by the conductor, it was held that the company was liable. Indianapolis, P. & C. R. Co. v. Pitzer, 4 West. Rep. 257, 109 Ind. 179.

A street-car passenger who has signaled for the car to stop so he may alight is not guilty of contributory negligence in going upon the step of the car when it slows up, as he has a right to expect that it will stop; and where it starts up again with a jerk before stopping, and he is thrown off, the accident is not the result of contributory negligence. Harmon v. Washington & G. R. Co. (D. C.) 17 Wash. L. Rep. 428

Baltimore & O. R. Co. v. Leapley, 4 Cent. Rep. 253, €5 Md. 571.

Where a train stops at a station and starts again before a passenger can alight, an attempt by him to leave it while it is moving, made under the conductor's direction, is not, as a matter of law, contributory negligence which will bar a recovery for injuries sustained in doing so. St. Louis, I. M. & S. R. Co. v. Person, 49 Ark. 182.

Where the conductor announces the name of the station after the train stops, the announcement is equivalent to an invitation to alight; and if passengers are deceived by such an announcement, and are consequently injured, the railroad company will be responsible. Central R. Co. v. Thompson 76 Ga. 770.

Another witness for plaintiff states that he | cuse. Now, I will consider whether they show was present, and saw the train approach the the plaintiff guilty of contributory negligence station. Using his own words, he says: "I to such a degree as to preclude his right to rethink the train checked up a little, west of the cover. A review of authorities will first be platform, but near it. I do not think the train necessary. stopped entirely at the station this trip. I think the train came nearer stopping that day than it usually does to put off the mail. About the time the locomotive got opposite the platform the train was moving very slow." Another of plaintiff's witnesses states, using his own language: "I was at Doyline Station the day that Mr. Walker got his leg broke. I was in about fifteen steps of him when it happened. I saw him when he went to step off the train, and it appeared to me that, as he did so, the train got faster, and jerked his feet from under him. Just before and at the time he attempted to get off the train was going slow, and just as he went to step it appeared to me that it jerked his feet from under him. I do not know that it was going any slower than when they checked up for the mail. I have never seen anyone get off there when the train was running as fast as it was then, except Mr. Walker. I have frequently got on the train

It was decided by the Supreme Court of Tennessee, in 1887, that the act of a passenger in alighting from a train while in slow motion, who sustained injuries in consequence, bas been, in the courts of several of the States, treated as negligence per se, and no damages can be recovered; but, says the court (86 Tenn. (2 Pickle) 348), "this is contrary to the current of judicial opinion, in this country at least. The true rule deducible therefrom is stated in 2 Wood, Railway Law, 1130, to be that 'in all cases the question is one of fact whether, in view of the particular circumstances, the passenger was guilty of negligence in atempting to leave the train while it was in motion. In this, as in all other matters where the safety of passengers is concerned, the company owes a duty to the passenger to act with proper care and caution; and if the motion of the train is not entirely stopped, and the passenger is expressly or impliedly invited to leave the when it was going as fast as that." train while moving at a slow rate of speed, he has On the part of the defendant there is not a a right to presume that it is safe for him to do syllable of positive testimony in opposition to so. If the train is moving slowly, and these emphatic statements. The conductor there is no obvious danger in getting off, it canwas sworn, and simply stated "that the aver- not be said to be negligence per se to make the age rate of running is about twenty-four and attempt, especially if the passenger is directed one half miles an hour on the road from Mon-to do so; . and it would be wrong to inroe to Shreveport. This was true in October, 1886. . . . The average rate of speed, when passing flag stations, when the train does not stop, is between eight and twelve miles an hour, for the exchange of mails, as above stated." This witness does not profess to have any knowledge of the occurrence, because he says: "I learned the day afterwards that Mr. Walker jumped off the train, and bad broken his leg." He subsequently volunteered the statement: "I judge that the train was running at about ten miles an hour on that day, when it passed Doyline, because it usually passes at that speed when only delivering the mail."

The engineer testified that he was on this road, running a passenger engine and train, in October, 1886, but that he had "no recollection of the accident that resulted in the injury of Mr. Walker." Said he did not "recollect who was engineer on the passenger train going east, on the 16th of October, 1886."

The defendant's third witness was the porter, who states, using his own words: "I recollect the time that Mr. Walker was said to have been hurt, at or near Doyline Station." He says further: "I remember that on that day no signal was given to stop at Doyline, and I did not leave my seat."

Consequently it is established by the concurring statements of defendant's three witnesses, all of them trainmen, that they knew nothing| of the occurrence, and could testify to nothing adverse to the testimony of plaintiff's witnesses. Of course the mere theoretical conjecture of the engineer, as to the speed of the train, amounts to nothing at all.

The recital of the foregoing facts is sufficient to take this case out of the principle announced in Pennsylvania R. Co. v. Aspell. They plain ly show the defendant in fault, and without ex-|

...

struct the jury that such an attempt per se con-
stituted contributory negligence.' Id. 1129.
'As a rule, it may be said that where a passen-
gr, by the wrongful act of the company, is com
pelled to choose between leaving the cars while they
are moving slowly, or submitting to the incon
venience of being carried by the s'ation where ho
desires to stop, the company is liable for the con
sequences of the choice, provided it is not exer-
cised negligently or unreasonably.' Id. 1131,
1132,"-citing Thompson, Carr. 227-267. See
also Plopper v. New York Cent. & H. R. R. Co.
13 Hun, 625; Keating v. New York Cent. & H.
R. R. Co. 49 N. Y. 673; and Taber v. Delaware,
L. & W. R. Co. 71 N. Y. 489.

"The earlier cases," says the Tennessee court, "establish the rule that leaving a train [while] in motion was such negligence as defeated the right of recovery, unless done to avoid danger of remaining on board; and this is still stated as the general rule' in many authorities. 2 Wood, Railway Law, 1126; Thomp son, Carr. 267.

"But the rule we have laid down is the modern one, and formulated from the many exceptions, and this modification has been before recog nized by this court. East Tennessee, V. & G. R. Co. v. Conner, 15 Lea, 258;" Louisville & N. R. Co. v. Stacker, 86 Tenn. (2 Pickle) 345.

It was decided by the Supreme Court of Georgia, in a recent case, that "the railroad was bound to put him [a passenger] off.--to stop its train for this purpose. This it failed to do, and it was not want of ordinary care in the passenger to use the only means to get off the course of the defendant permitted.' Georgia R. & Bkg. Co. v. McCurdy, 45 Ga. 289. See also Filer v. New York Cent. R. Co. 49 N. Y. 47; Loyd v. Hannibal & St. J. R. Co. 53 Mo. 509 Illinois Cent. R. Co. v. Able, 59 Ill. 131.

The proper limitation of that rule is stated in | W. R. Co. 64 Wis. 228; St. Louis, I. M. & S. R. Wood's Railway Law thus: "But, generally, Co. v. Person, 49 Ark. 182; St. Louis, I. M. & no recovery can be bad if the cars are under S. R. Co. v. White, 48 Ark. 495; Louisville, N. such motion as to render it obviously danger. O. & T. R. Co. v Mask, 64 Miss. 738; Hunter ous for a person to attempt to leave them,"-p. v. Cooperstown & S. V. R. Co. 112 N. Y. 371, 1136, citing Jeffersonville R. Co. v. Hendricks, 2 L. R. A. 832, and many other cases. 26 Ind. 228; Pennsylvania R. Co. v. Aspell, 23 Pa. 147; Damont v. New Orleans & C. R. Co. 9 La. Ann. 441; Gavett v. Manchester & L. R. Co. 15 Gray, 501.

The author then proceeds: "And, under such circumstances, it is not sufficient to charge the company that the conductor advised the passengers to make the attempt. It is the duty of the passenger to exercise his own judgment, and, if the danger was so great that a man of ordinary prudence would not have attempted it, he is guilty of such contributory negligence as bars a recovery,"-citing Chicago & A. R. Co. v. Landolph, 53 Ill. 510; Chicago, B. & Q. R. Co. v. Hazzard, 26 Ill. 873.

"When the danger is apparent, it must not be braved simply because the company is bound to stop the train, or because it is very important that the passenger should stop at that particular time. Wood, Railway Law, 1136.

But the rule is stated concisely to be: "But, in all cases, the question of liability must necessarily be determined by the facts and circumstances of each case,--whether the train was in rapid motion, and whether the real danger was obvion." 2 Wood, Railway Law,

1137.

"But where a railway company fails to bring its train to a full st p at a station, it will be liable in dumoges for injuries sustained by a pas senger in aitem ting to get off, if, under all the circumstances, it was prudent for him to make the attempt.” Id. 1148, 1149; Price v. St. Louis, h. C. & N. R. Co. 72 Mo. 414; Central R. & its. Co v. Letcher, 69 Ala. 106; Chicago, R. 1. P. P. Co. v. Houston, 95 U. S. 697 [24 L. ed. 542], Memphis & C. R. Co. v. Copeland, 61 ΑΙ. 356.

The italics in preceding quotations are those of the writer.

Abbott states the rule thus: "Alighting from the car at an unsuitable place is not contributive negligence, if the train is not stopped at a suitable one, and if there is not such apparent danger as would deter a person of ordiDary pro lence." 2 Abbott, Dig. Corp. 598.

In Solomon v. Manhattan R. Co. 103 N. Y. 437, 4 Cent. Rep. 775, it was held that, to justify a recovery, the act of the defendant must put the passenger to a sudden election between alternative danger or inconvenience, or create some situation "which interfered, to some extent, with his free agency, and was calculated to divert his attention from the danger, and create a confidence that the attempt could be made in safety."

This principle has been frequently maintained and upheld by different courts, and notably in the following, viz.: South Covington & C. Street R. Co. v. Ware, 84 Ky. 267; Collins v. Davidson, 19 Fed. Rep. 83; Haff v. Minneapolis & St. L. R. Co. 14 Fed. Rep. 558; Lawrence v. Green, 70 Cal. 417; Chicago & N. E. R. Co. v. Miller, 46 Mich. 532; Cincinnati, H. & 1. R. Co. v. Carpar, 112 Ind. 26, 11 West. Rep. 221; Stewart v. Boston & P. R. Corp. 146 Mass. 605, 6 New Eng. Rep. 273; Dela are & II. Canal Co. v. Webster (Pa.) 4 Cent. Rep. 638; St. Louis, 1. M. & S. R. Co. v. Person, 49 Ark. 182.

The rule was again formulated thus, in Strand v. Chicago W. M. R. Co. 64 Mich. 216, 7 West. Rep. 470: "In order to make him so [negligent], he must, as in all other cases, decide upon facts as they appear, as a man of ordinary care would do under the same circumstances. It is not right of any passenger to run evident risks to bis safety, but the rule of prudence binding on him must be that which, under just such circumstances, would restrain all men of ordinary prudence. If the mind of an ordinarily prudent man would be impressed with the belief of danger, he has no right to iucur the danger. If the danger would not be apparent, he is not negligent in acting on that assumption."

To this list might be added an almost indefinite number and variety of cases to the same effect. But it is quite sufficient to say that, on the faith of those quoted and cited, the following principles are firmly established on American jurisprudence, viz.:

(1) That it is not per se negligence on the part of a passenger to alight from a moving train. (2) The question is one of fact whether, un

was guilty of negligence in attempting to thus alight; and, if it appear that he was expressly or impliedly invited to leave the train while moving at a slow rate of speed, he has the right to presume that it is safe for him to do so.

Beach announces the rule thus: "As in the case of boarding a railway train in motion, so it is hell not contributory negligence per se for a passenger to jump off a train which is mov-der the particular circumstances, the passenger ing. Galveston, H. & S. A. R. Co. v. Smith, 59 Tex. 406; Loyd v. Hannibal & St. J. R. Co. 53 Mo. 509; Pennsylvania R. Co. v. Kilgore, 32 Pa. 292; Brooks v. Boston & M. R. Co. 135 Mass, 21. Whether or not a railway company shall be held liable in damages for injuries sus tained by a passenger in attempting to leave one of its trains while in motion will depend upon whether, under all the circumstances, it was prudent for him to make the attempt." Beach, Contrib. Neg. p. 157, § 53, citing the following authorities, viz.: Price v. St. Louis, 1. C. & N. R. Co. 72 Mo. 414; Doss v. Missouri, K. & T. R. Co. 59 Mo. 27; Parish v. Euen, 62 Wis. 272; Langhof v. Milwaukee & P. du C. R. Co. 19 Wis. 4×9; Curry v. Chicago & N. W. R. Co. 43 Wis. 685; Leavitt v. Chicago & N.

(3) When a passenger, by the wrongful act of a railroad company, is compelled to choose between leaving the cars while they are mov ing slowly, or submitting to the inconvenience of being carried by the station where he desires to stop, it is liable for the consequences of the choice, provided it is not exercised negligently or unreasonably, and it is not want of ordinary care in the passenger to use the only means to get off the course of the defendant permitted.

(4) To justify a recovery, the act of the com

pany must put the passenger to a sudden elec- | from defendant's train while in motion did not tion between alternate danger or inconvenience, constitute his act contributory negligence, beor create some situation which interfered, to cause it was voluntary and without an invitasome extent, with his free agency, and w-s cal- tion, express or implied. culated to divert his attention from the danger, and create a confidence that the attempt could be made in safety.

I therefore respectfully submit that the mere fact of the plaintiff having attempted to alighting this end that I place my views on record.

NORTH CAROLINA SUPREME COURT.

for value and without notice from his grantee. 2. A conveyance by a man of his real estate during the period in which the common6. That the deed was not held to be absolaw right of married women to dower was sus-lutely void as to Roxana B. Odom, wife of pended, barred all claim of his wife thereon al- Oliver Odom. though she did not join in the conveyance.