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but in actions to recover real property, this can only be done when the property is an entire tract."

The mortgaged real property situated in Delaware County was not part of an entire tract situate in more than one county, but was a separate and independent tract of land located entirely in Delaware County. As the

action to recover the real property was brought
in Union County, where no part of the land
embraced in the mortgage was located, the de-
fendant in error, Mary J. Shafer, cannot be
held chargeable with constructive notice of the
pendency of the action.
Judgment affirmed.

WISCONSIN SUPREME COURT.

Elizabeth MOLETOR, by Guardian ad Litem,, released on bail or acquittal on trial, he is sub

Appt.,

V.

Mathias SINNEN, Respt.

(...... Wis.......)

ject to arrest on civil process.

Williams v. Bacon, 10 Wend. 636; Lucas v. Albee, 1 Denio, 666; Lynch's Case, City Hall Rec. 138; Shotwell's Case, 4 City Hall Rec. 75; Moore v. Green, 73 N. C. 394; Adriance v. La A person who has been brought within grave, 59 N. Y. 110; Slade v. Joseph, 5 Daly, |187; Com. v. Daniel, 4 Pa. L. J. Rep. (Clark) the jurisdiction of a court from anPittsb. 117; other State, upon a requisition, as a fugi- 49, 6 Pa L. J. 330; Key v. Jetto, tive from justice, and has been tried for or dis- Scott v. Curtis, 27 Vt. 762; Hare v. Hyde, 16. charged as to the offense charged against him, is B. 394; Jacobs v. Jacobs, 3 Dowl. P. C. 675; not subject to arrest on a civil process until a Reg. v Douglas, 7 Jur. 39; Goodwin v. Lordon, reasonable time and opportunity have been given 1 Ad. & El. 378; Addicks v. Bush, 1 Phila. 19; him to return to the State from which he was Bours v. Tuckerman, 7 Johns. 538; Lagrave's Case, 14 Abb. Pr. N. S. 333, note.

taken.

(March 18, 1800.)

APPEAT, by plaintiff from an order of the

Circuit Court for Sheboygan County setting aside the service of summons and complaint and vacating the order for arrest of defendant. Affirmed.

The case sufficiently appears in the opinion. Mr. D. T. Phalen, with Mr Simon Gillen, for appellant:

Messrs. William H. Seaman and Francis Williams, for respondent:

Where there is an irregular arrest, and an advantage is taken of the irregularity to charge him in custody at the suit of another person, the courts of law will discharge him from both.

Ex parte Wilson, 1 Atk. 152; Townsend v. Smith, 47 Wis. 623; Carpenter v. Spooner, 2 Sandf. 717; Matthers v. Tufts, 87 N. Y. 568; Person v. Grier, 66 N. Y. 124; Compton v. Wilder, 40 Ohio St. 130; People v. Judge, 40 Mich. 729; Cannon's Case, 47 Mich. 482; Bald

If the defendant was a fugitive from justice at the time he entered upon, or took up, his residence in the State of Illinois, then he cannot claim a legal residence, domicil or citizen-win v. Judge, 48 Mich. 525; Sherman v. Gundship in the State of Illinois; for his residence there lacks, in law, the bona fide intent, which is the legal foundation of a residence or domicil for the purpose of acquiring a citizenship. 2 Bouvier, L. Dic.; Anderson, L. Dict. 892; Dutcher v. Dutcher, 33 Wis. 658; Hall v. Hall, 25 Wis. 607; Crawford v. Wilson, 4 Barb. 501; Re Thompson, 1 Wend. 43, Re Wrigley, 8 Wend. 134: Gravillon v. Richard, 13 La. 293; Lyman v. Fiske, 17 Pick. 231.

Before the defendant can claim the relief granted him in the order appealed from, he must show that be is privileged generally from the service of process, or that fraud, deceit or abuse of the process of the court has been had by the plaintiff, or some person acting for her and in ber behalf, in procuring the service of the summons, complaint and order of ariest served upon the defendant in this action.

1 Greenl. Ev. § 74; 1 Wharton, Ev. § 354; Costigan v. Mohack & H. R. Co. 2 Denio, 609; Walworth v. Pool, 9 Ark. 394; King v. Steiren, 44 Pa 99; Jones v. Jones, 2 Swan, 605; Benninghoff v. Osiell, 37 How. Pr. 235; Townsend V. Smith, 47 Wis. 623; Chubbuck v. Cl. veland, 37 Minn. 466; Dunlap v. Cody, 31 Iowa, 260 Where a defendaut in a criminal action is brought from one jurisdiction or State to another as a fugitive from justice upon crimi nal process duly issued, and after being

lach, 37 Minn. 118; Chubbuck v. Cleveland, 37 Minn. 468; Palmer v. Ran, 21 Neb. 452; Jacobson v. Hosmer, 76 Mich. 234; Halsey v. Stewart, 4 N. J. L. 366; Williams ads. Reed, 29 N. J. L. 385; Atchison v. Morris, 11 Fed. Rep. 582; Smail v. Montgomery, 23 Fed. Rep. 707; Juneau Bank v. McSpedan, 5 Biss. 64; United States v. Bridgman, 9 Biss. 221; Blair v. Turtle, 1 McCrary, 372; Wanzer v. Bright, 52 Ill. 35; Lili v. Goodrich, 32 Conn. 588.

Cole, Ch. J., delivered the opinion of the court:

Did the circuit court properly set aside the service of the summons and complaint in this action, and vacate the order of arrest therein? The defendant was brought into this State upon a requisition upon the governor of Illinois, having been charged with the crime of seducing the plaintiff under a promise of marriage, and alleging that he was a fugitive from justice. Upon an examination before a magis trate, he was bound o er for trial. At the April Term of the Circuit Court of Sheboygan County, 1889, an information was filed in that court charging he defendant with having com. mitted the crime of seduction. At the October Term of that cour the defendant was duly ar raigned, and a plea in abatement was interposed, setting up the Statute of Limitations a

Many of the state courts hold the same rule. Compton v. Wilder, 40 Ohio St. 130; People v. Judge, 40 Mich. 730; Cannon's Case, 47 Mich. 482; Baldwin v. Judge, 48 Mich. 525; Jacobson v. Hosmer, 76 Mich. 234; Sherman v. Gundlach, 37 Minn. 118; Chubbuck v. Cleveland, 37 Minn 466; Palmer v. Rowan, 21 Neb. 452; Wanzer v. Bright, 52 Ill. 35; Williams ads. Reed, 29 N. J. L. 385; Hill v. Goodrich, 32 Conn. 588.

The last three cases go upon the same ground as Townsend v. Smith, supra.

a defense to the action. This plea was sus- | Biss. 64; United States v. Bridgman, 9 Biss. 221;
tained by the court, and the defendant was Blair v. Turtle,1 McCrary, 372, 5 Fed Rep. 394;
discharged from custody. Within ten minutes Atchison v. Morris, 11 Fed. Rep. 582.
after his discharge, and before he had departed
from the court-room, the deputy sheriff made
service of summons and complaint, and order of
arrest, upon him, at the suit of the plaintiff, for
a breach of promise. It appears that the defend-
ant, at the time of the alleged seduction, was a
resident of Sheboygan County. He left the State
in January, 1888, and remained outside the
State, except that he returned in the night-
time in the same month, and transacted some
business, and immediately left. He was brought
back on a requisition as a defendant in a criminal
action, and as a fugitive from justice. It is said
by the counsel for appellant that the affidavit
of the defendant upon which the order of the
court setting aside the service and order of ar-
rest is based, is insufficient, because it fails to
show any fraud or abuse of the process of the
court by the appellant, or by any person acting
for her, in the procurement of the return of
the defendant on the criminal prosecution; nor
does it show that the defendant was, at the time
he so returned on the requisition, a bona fide
citizen of Illinois. But it appears from the af-
fidavit of the plaintiff which was used to obtain
the order of arrest that the defendant was not
a resident of this State, but resided in the City
of Chicago, and that he was about to return to
that State; and, while the promise of marriage
was made, and the alleged seduction was ac-
complished, in 1887, it does not appear that
the plaintiff had anything to do in procuring
the defendant's return on the requisition of
the governor, nor does it appear that there was
any fraud used on the part of anyone to get the
defendant within the State. In that respect
the case is distinguishable from Townsend v.
Smith, 47 Wis. 623, and cases where jurisdic-perversion of measures which had to be resorted
tion is obtained by fraudulent means.

It is assumed, in this case, as a fact, that the defendant had committed the crime of seduction, as alleged, and had withdrawn himself from the State to avoid a prosecution therefor, so as to be a fugitive from justice in a legal sense. Still, having been forcibly brought to the State on a requisition, and the court having exhausted its jurisdiction over him in respect to the crime with which he was charged, could he properly be arrested in a civil action until a reasonable time and opportunity had been given him, after his discharge, to return to the State from which he had been forcibly taken? This is the question involved in the appeal; and we think sound principle requires that, where a person has been brought within the jurisdiction of a court upon a requisition as a fugitive from justice, and has been tried for, or discharged as to, the offense charged against him, that he ought not to be subject to arrest on a civil process until a reasonable time and opportunity had been given him to return to the State from which he was taken.

In the courts of the United States, the weight of judicial opinion is in favor of the proposition that, where a party in good faith is brought within the jurisdiction of a State, or detained therein, being a nonresident, either as a party to a suit, or as a witness in another suit, he is not subject to service. Small v. Montgomery, 23 Fed. Rep. 707; Juneau Bank v. McSpedan, 5❘

The reason for the rule that a person is exempt from arrest under the circumstances disclosed in this case is that sound public policy requires that a person shall be privileged from arrest while going to or from court in all judicial proceedings. The privilege should exist to subserve great public interests, and the due administration of justice. Moreover, as was said by Campbell, J., in Cannon's Case: "It is very well known that the perversion of extradition proceedings has on more than one occasion led to difficulties between nations, and to refusals by state executives to deliver up persons charged with crime whose arrest was supposed to be desired for sinister purposes." The temptation is certainly strong to make such requisitions subservient to private interests; and they are often resorted to to enforce a collection of private debts, or to remove a citizen from his home into a foreign jurisdiction, in order to get service on him in a civil action. For the most cogent reasons, therefore, we think courts of justice are bound to see that no improper use be made of such proceedings, which would look like a violation of good faith, and a

to in order to bring the party accused within
their jurisdiction. We do not deem it neces-
sary to comment in detail upon all the cases
cited. We will observe, however, that in cases of
extradition by a foreign government, under a
treaty, the Supreme Court of the United States
holds that a person who has been brought
within the jurisdiction of a court by virtue of
proceedings under an extradition treaty could
only be tried for one of the offenses described
in said treaty, and for the offense with which
he is charged in the proceedings for his extra-
dition, until a reasonable time and opportunity
had been given him, after his release or trial
upon such charge, to return to the country
from whose asylum he had been forcibly
taken under those proceedings. United States
v. Rauscher, 119 U. S. 407 [30 L. ed. 425].

A distinction is made in some of the authori-
ties between civil and criminal cases. In
criminal cases, some courts hold that even a
forcible seizure in another country, and the
transfer by violence or fraud to this country, is
no sufficient reason why the party should not
answer when brought within the jurisdiction
of a court which has the right to try him for
such an offense. See Ker v. Illinois, 119 U. S.
436 [30 L. ed. 421]; Mahon v. Justice, 127 U. S.
700 [32 L. ed. 283].

The offense having been committed in the State to which the party is brought, he may be there tried for it; and neither comity to a sister

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State, nor any just appreciation of the rights | vious there is no fair analogy between civil of a citizen, entitle him to be released. He and criminal cases in this respect, and a difmay be held to answer for the crime he has ferent rule applies. committed. This question is fully considered in State v. Stewart, 60 Wis. 587. But it is ob

It follows from these views that the order of the Circuit Court must be affirmed.

MISSOURI SUPREME COURT.

Herman WEBER, Respt.,

v.

KANSAS CITY CABLE R. CO., Appt. (....Mo.....)

1. Running grip cars at a rate of speed prohibited by ordinance is negligence per se.

2. The fact that a door in the side of a grip car is open is no invitation to a passenger to pass through it for the purpose of jumping off the car while the train is running at full speed.

3. A passenger who alights from a grip

car running at full speed and is instantly struck

by a car, running in the other direction, which

he could have seen if he had looked for it, is guilty of contributory negligence which will prevent any recovery for his injuries.

Plaintiff was guilty of contributory negli gence, in stepping from a rapidly moving train in front of another, approaching at the same rate of speed, from the opposite direction.

Leslie v. Wabash, St. L. & P. R. Co. 3 West. Rep. 824, 88 Mo. 50; Nelson v. Atlantic & P. R. Co. 68 Mo. 596.

An unavoidable inference of contributory negligence arises out of plaintiff's evidence.

Thompson, Trials, § 1680; Milburn v. Kansas City, St. J. & C. B. R. Co. 86 Mo. 104; Buesching v. St. Louis Gaslight Co. 73 Mo. 229.

The proximate cause of the injury was plaintiff's leaping in front of an approaching car.

Henze v. St. Louis, K. C. & N. R. Co. 71 Mo. 636; Purl v. St. Louis, K. C. & N. R. Co. 72 Mo. 171; Straus v. Kansas City, St. J. & C. B. 4. A demurrer to plaintiff's evidence is R. Co. 75 Mo. 191: Leduke v. St. Louis, I. M. & not waived by defendant by putting in his evi- S. R. Co. 4 Mo. App. 485; Henry v. St. Louis, dence where he asks the direction of a verdict K. C. & N. R. Co. 76 Mo. 293; McCann v. Sixth against the plaintiff at the close of all the evi- Are. R. Co. 117 N. Y. 505. dence.

On Petition for Rehearing.

5. An exception to a refusal to give requested instructions taken in the following form: "And said instructions (naming them), as asked, the court refused, to which refusal of the instructions thus asked the defendant by its counsel then and there excepted at the time," will not be treated as a general exception to the refused instructions as a whole, but it will entitled the party to have each refused instruction considered in the appellate court.

(January 27, 1890.)

A the Circuit Court for Clay County in favor

PPEAL by defendant from a judgment of

of plaintiff in an action to recover damages for personal injuries alleged to have resulted from defendant's negligence. Reversed.

The facts are fully stated in the opinion. Messrs. Johnson & Lucas, for appellant:

NOTE.-Street railroads; cable line.

A street railway company is bound to exercise the greatest care and foresight, in the construction and operation of a cable line, to provide for the safety of passengers. Watson v. St. Paul City R. Co. (Minn.) Nov. 18, 1889.

It is the duty of those in charge of a grip cablecar running on the streets of a populous city to be on the lookout, and to take all reasonable measures to avoid injuries to persons who may be on the streets; and this duty is not discharged as a matter of law by ringing the bell and seeing that the track before the car is clear, without looking to the right or the left. Winters v. Kansas City Cable R. Co. (Mo.) 6 L. R. A. 536.

A gripman on a cable car is required to use ordinary care to prevent collision with wagons driven in the street. Pope v. Kansas City Cable R. Co. (Mo.) Jan. 27, 1890.

There was no evidence that the proximate cause of the injury was the rate of speed at which the trains ran.

Ashbrook v. Frederick Ave. R. Co. 18 Mo. App. 290; Harlan v. Wabash, St. L. & P. R. Co. 18 Mo. App. 483; Leduke v. St. Louis, I. M. & S. R. Co. supra; Holman v. Chicago, R. 1. & P. R. Co. 62 Mo. 562; Fletcher v. Atlantic & P. R. Co. 64 Mo. 484; Wallace v. St. Louis, I. M. & S. R. Co. 74 Mo. 591; Chicago, B. & Q. R. Co. v. Notzki, 66 Ill. 455; Kelley v. Hannibal & St. J. R. Co. 75 Mo. 135.

Unless the employés on the west-bound train saw plaintiff or could have seen him in time to stop the train, plaintiff cannot re over.

Swigert v. Hannibal & St. J. R. Co. 75 Mo. 475; Zimmerman v. Hannibal & St. J. R. Co. 71 Mo. 476.

Mr. Wash Adams, for respondent: Weber was not bound to look and listen for an approaching train.

lance corresponding to the responsibility placed unon him. Potts v. Chicago City R.Co. 33 Fed. Rep. 610. Pulling down curtains to keep rain out of a car is not negligence on the part of the conductor, although it prevents the view of sides of the street. Ibid.

Stepping on the track of a street railroad, whether of horse railroad or grip cable-road, without first stopping to see whether a car is approaching, is not as matter of law, without regard to circumstances, negligence. The character of such action is a question for the jury. See note to Chicago City R. Co. v. Robinson (Ill.)4 L. R. A. 126.

Contributory negligence bars a recovery. See notes to Erickson v. St. Paul & D. R. Co. (Minn.) 5 L. R. A. 787; Watkinds v. Southern Pac. Co. (Or.) 4 L. R. A. 239.

Passenger alighting from moving train presumptively negligent. See note to New York, P. & N. R. Law demands of the gripman in a cable car a vigi- | Co. v. Coulbourn (Md.) 1 L. R. A. 541. 7 L. R. A.

Langan v. St. Louis, 1. M. & S. R. Co. 72 Mo. 392; Brassell v. New York Cent. & H. R. R. Co. 84 N. Y. 241.

Notwithstanding the concurrent negligence of plaintiff a recovery is not precluded if defendant failed to discover plaintiff's danger through its own recklessness and want of compliance with municipal ordinances.

Dunkman v Wabash, St. L. & P. R. Co. 10 West. Rep. 396, 95 Mo. 232.

In view of the fact that it was customary for persons to get off moving cars at crossings, and that the street crossings were the places established by defendant for ingress and egress, whether it was negligence for the trains to pass crossings at an unlawful rate of speed was for the jury to determine.

Williams v. Kansas City, S. & M. R. Co. 96 Mo. 281.

A passenger when taking or leaving a railroad car at a station has the right to assume that the company will not expose him to unnecessary danger.

Brass ll v. New York Cent. & H. R. R. Co. 84 N. Y. 241.

Black, J., delivered the opinion of the

court:

The bones were broken, but amputation was not necessary. He is a cripple for life. He stepped off at or within a few feet of the east crossing. He says the train going west was so close to bim when he got off that he could not see it. The whistle attached to the cord was in the grip car, and was out of order, so that it gave no signal. The plaintiff's seat in the car was within six or eight feet of the gripman, and the plaintiff did not notify the conductor or gripman where he desired to leave the car. He had been in the habit of going back and forth, to and from his work, by way of the defendant's road, and was familiar with the running of the cars. There were eight trains on the road, and each made ten or twelve daily trips. These trains were running at the rate of a fraction over seven miles per hour, in violation of a city ordinance which limits the rate of speed to six miles per hour.

signals, said: "Yes, sir. On that occasion I cannot say whether I noticed any."

The defendant offered evidence to the effect that there were notices in the cars warning persons not to get off while the cars were in motion. The defendant offered other evidence; but, as it does not aid the plaintiff's case, it need not be recited.

The evidence tends to show that it was the custom to ring the bells on both trains when and wherever they passed. The gripman of the train on which planuif took passage tesdfied in positive terms that the bells on both trains were ringing at and before plaintiff stepped off; but the plain ff testified, in answer to the question whether he heard any The plaintiff recovered a verdict for $13,200, bells: "I don't remember of one on the car I and, on the suggestion of the trial court, re- was on. I never heard the bell on the apmitted a part, and accepted a judgment for proaching car." Another witness for the plain$10,000, to reverse which the defendant ap-tiff, being asked if he was accustomed to hear pealed. The defendant, at the close of the plaintiff's evidence, submitted a demurrer to the evidence, and asked a like instruction at the close of all of the evidence, both of which were refused. These instructions present the question whether the court should have taken the case from the jury. The facts disclosed by the plaintiff's evidence are, in substance, these: "The defendant's road runs east and The defendant, in running its trains at a rate west through the City of Kansas. The cars of speed probibited by ordnance, was gunny of run east on the south, and west on the north, negligence per se. Keim v. Union R. & Trantrack; and when the trains pass there is a sit Co. 90 Mo. 314, 7 West. Rep. 144. space of not more than eighteen inches between Besides that, there is some evidence, though the cars. The cars going east stopped only at it is very weak, to the effect that the gripman the east, and those going west at the west, on the west-bound train did not, as was the sidewalk crossings; and then only when per-custom, ring the bell f his car when passing sons desired to get on or off. The plaintiff, a the east-bound train, upon which laintiff was young man about twenty years old, boarded an a passenger. We shall assume, for all present east-bound train, composed of a coach and purposes, that this bell was not rung. It is argrip car, intending to go to Holmes Street. He gued for the defendant that the speed of the tock a seat on the north side of the grip car, train had no direct agency in causing the innear the rear end. Besides end doors, this car jury, but we cannot yield a consent to the had two side doors at the rear end,-one open-proposition. There was sufficient evidence of ing out on the north, and the other on the negligence on the part of the defendant. The south, side. These doors were open, and there important question is whether the case should was no gate or other contrivance to prevent have been taken from the jury because of conpersons from going out on the north side.tributory negligence on the part of the plaintiff. Plaintiff testified that when he reached Holmes Street he pulled a cord, which was attached to an air-whistle, twice; that he heard no signal, and the cars did not stop; that he was looking out of the side windows of the car, and then leaned over and looked out of the front-end car door, and did not see any train coming from the cast on the north track; that he then got up, went to the rear end of the car, and then stepped out of the north door, and, just as he got upon the ground, a train going west, on the north track hit him and knocked him down. His legs were thrown under the wheels of the cars upon which he had been riding.

While carriers of passengers are held to a very high degree of care, there is a corresponding obligation on the part of the passenger to act with prudence; and, if his negligent act contributes to bringing about the injury, he cannot recover. Ordinarily, as has been said by this court on several occasions, contributory negligence is a question of fact, for the jury; but the power and the duty of the court to direct a verdict in proper cases cannot be questioned. As has been said, if it appears, with out any conflict of evidence, from the plaintiff's own case, or from the cross-examination of his witnesses, that he was guilty of negligence

Again it is argued that the plaintiff was not

proximately contributing to produce the injury | attempt to get off, then the act is contributory it would be the duty of the court to take the negligence, and will bar a recovery. 2 Am. & case from the jury. Buesching v. St. Louis Eng. Cyclop. Law, 763. Gaslight Co. 73 Mo. 219. A demurrer to the evidence must be sus-bound to look out for the approaching car, betailed where an unavoidable inference of contributory negligence arises out of the plaintiff's own evidence, or out of other evidence which stands undisputed in the case. 2 Thompson, Trials, § 1680.

But where the undisputed facts relied on to establish contributory negligence are such as may, in the judgment of sensible men, lead to different conclusions as to whether they establish want of care, the question of negligence on the part of the plaintiff should be submitted to the jury Pty. Hannibal & St. J. R. Co. 88 Mo. 806, 8 West. Rep. 297.

Caner dificulty lies, not in the rule, but in its application; and here we may dispose of some preliminary questions. Much reliance is, by the plaintiff, placed upon the fact that the north door was open, and without a gate or other guard to prevent persons from getting off on the north track. Though it was warm weather, the fact that the door was left open and unguarded might be regarded as an invitation to alight from that side when the car was employed in receiving and discharging passengers. But it was certainly no invitation for anyone to jump off when the car was running at full speed. The very fact that the cars did not stop or check up was a warning to the passengers not to get off.

In McGee v. Missouri Pac. R. Co., 92 Mo. 218, 10 West. Rep. 282, the brakeman announced the station, and he and the conductor went out, taking their lights with them; and in the mean time the train stopped at a dangerous place. These facts, it was held, could be construed in no other light than a direction for the passengers to alight. The facts of that case are unlike the facts in the case at bar, as will be readily seen. The fact that the door was open cannot and ought not to be construed as any invitation to alight while the train was at full speed.

It was, in substance, said iu Doss v. Missouri, K. & T. R. Co., 59 Mo. 27, that to jump from a car propelled by steam, while in rapid motion, might be regarded as mere recklessness; but to step from a car at a platform while the motion of the car is slight may or may not be negligence, and the question is one for the jury. These observations have been quoted or cited with approval in subsequent cases. Kelley v. Hannibal & St. J. R. Co. 70 Mo. 604; Nelson 7. Atlantic & P. R. Co. 68 Mo. 593; Leslie v. Wabash, st. L. & P. R. Co. 88 Mo. 52, 3 West. Rep. 824.

To jump from a horse car while in rapid motion is not negligence per se. Wyatt v. Citizens R. Co. 55 Mo. 487. In that case there was evidence tending to show that the conductor ordered the boy to get off.

cause, being a passenger, he had a right to assume that defendant would do nothing to put him in danger when alighting, and in that respect he stood on a different footing from a footman crossing the track; and in support of this we are cited to Chicago City R. Co. v. Robinson, 127 Ill. 9. 4 L. R. A. 126. In that case a boy six years old alighted from standing grip cars, on which he had been a passenger, and was run over and killed when going over the sidewalk crossing at or near where he got off. It was held that the fact that he did not stop and look to see whether a train was approachiug was not, as a matter of law, and without any regard to the surrounding circumstances, negligence, but the question of his negligence was one for the jury. If a failure to look for an approaching cable train in that case was evidence of negligence, then for much stronger reasons is the failure of the plaintiff in this case to look for an approaching train evidence of negligence. Persons getting on and off of these cars are, while so doing, entitled to the protection due to passengers. The defendant is in duty bound to stop its cars, and let them remain at rest long enough for persons to get on and alight with safety; and the servants in charge of an approaching train are in duty bound to govern their conduct accordingly. But there is nothing in this case to show that defendaut was required to stop its trains at crossings when no one desired to get on or off. The train upon which plaintiff was a passenger being in full motion, the servants on the approaching train would not suspect that he, or anyone else, would be in the act of getting off. We do not see that the plaintiff stands on any better footing than he would if he had jumped off at a place other than a crossing. We have not said, nor do we now say that the act of alighting when the car was in full motion, taken by itself, or the failure of the plaintiff to look for approaching cars when he reached the car door, taken by itself, or any other single circumstance in the case, would be, as a matter of law, negligence. The undisputed evidence must be taken as a whole, and the conclusion must be drawn from the circumstances as a whole. We are not at liberty to consider them singly, and thus divide the case up into parcels. It cannot be, and we believe it is not, claimed, that the failure of the whistle to give an alarm afforded an excuse for leaving the car while in full motion.

Now, it is clear that the plaintiff was in possession of his faculties, and was accustomed to these cars, and must have known that they passed every few minutes. He left his seat without signifying any desire to get off to the brakeman, who was in close proximity to him, Whether a party jumping or stepping from a and without any reason to believe the cars moving car is guilty of negligence must, it is would come to a halt. When at the door of manifest, depend upon other circumstances the car he could have seen the approaching than the speed of the cars; and these circum-train by casting an eye east, for he then had stances are so variant that general rules only an unobstructed view; but that he did not do can be stated. If the rate of speed is so high, so is clear. Under these circumstances, he and the place of descent so obviously perilous, stepped off while the cars were running at full that a person of ordinary prudence would not speed, and was struck by the approaching cars

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