valise in his hand, and, after standing there The same conclusion was reached in Gulf, a short time, was thrown from the step by an ordinary though sudden jerk of the train as he turned to regain the platform.

Such also was the result in Denny v. North Carolina R. Co. 132 N. C. 340, 43 S. E. 847, where a passenger, in violation of a rule of the company with which he was acquainted, that passengers were not to go upon the platforms while trains were in motion, went upon the platform after he had signaled for his station, and then, after the train had run 75 or 100 yards past it, got down on the steps while the train was going too fast for him to get off, though its speed was decreasing, and he was holding to one of the rods on the car.

There are a few cases, indeed, which seem to have adopted the rule that for a railroad passenger to go upon the platform before the train stops is in itself negligence, even though the train is slowly approaching the station at which he intends to alight.

C. & S. F. R. Co. v. Warlick, 1 Ind. Terr. 10, 35 S. W. 235, where it appeared that a woman passenger, upon having gone to one end of the car to alight, and finding that that end had not reached the depot platform, returned to the car and proceeded to the other platform, the car being still in motion. The court said that she should have remained inside until the car came to a standstill.

To the same effect is Blue v. Pennsylvania R. Co. 1 Monaghan (Pa.) 757, where it appeared that a passenger on a railroad train went to the platform and down to the step as the train approached his destination, and then turned to retrace his steps.

In the following cases the question of contributory negligence was not discussed, but recovery was denied to passengers who went upon the platform or steps preparatory to alighting.

and before it reached the stopping place, unless they were seen there and their perilous position discovered.

In St. Louis, I. M. & S. R. Co. v. Rush, Thus, in Fletcher v. Boston & M. R. Co. 86 Ark. 325, 111 S. W. 263, it appeared that 187 Mass. 463, 105 Am. St. Rep. 414, 73 N. a woman passenger, upon her station being E. 552, the peculiar facts of which would called, left her seat and went to the steps in any view of the law seem to justify the of the coach before the train stopped, and conclusion that the passenger was negligent, while standing upon the steps was thrown to (it appearing that, while riding in the bag- the ground and killed by a sudden movement gage compartment of a combination car, and of the train. The court said that the comupon his station being called by the pany could move its trains as it saw proper, baggage master and while the train was so long as such movements were not caleumoving slowly, he left the car and stood lated to injure passengers who were in their on the first step of the platform, next proper places, or in such places and positions the locomotive, instead of going to the other as would naturally be expected of careful platform), the language of the court would passengers; and that it owed no duty to passeem to justify the conclusion that the mere sengers riding upon the steps of coaches fact that going upon the platform was neg-while the train was running into a station ligence per se. To quote from the opinion: "Plainly, if he had remained in the car until the train stopped, this danger would have been avoided, but he voluntarily left a place provided for him as a passenger, and where he would have been safe, and exposed himself the chance of injury which common experience has shown is incident to standing up on the platform of a moving railroad car. Even if it could be found that the baggage master, being a servant of the railroad, properly might announce the stations for the information of passengers, who would be justified in treating such an announcement as an invitation to leave the car, as held in Floytrup v. Boston & M. R. Co. 163 Mass. 152, 39 N. E. 797, yet this is not an invitation to leave a train while in motion, but after it has stopped. At the farthest it afforded no justification for the plaintiff to leave the car, and attempt to finish his journey on the platform or steps."

Such would seem also to be the position taken by the court in Paterson v. Central R. & Bkg. Co. 85 Ga. 653, 11 S. E. 872, where it appeared that a passenger on a mixed train, upon his station being called within two or three hundred yards thereof, went upon the platform while the train was moving slowly, intending to alight at a street crossing before reaching the depot. Whether his intention was an important factor in the decision the opinion fails to show.

And in Louisville & N. R. Co. v. Morris, 23 Ky. L. Rep. 448, 62 S. W. 1012, denying recovery to a passenger on a railroad train, who, upon his station being announced, while the train was crossing a bridge at a reduced rate of speed, walked out on the platform. and, finding the train still moving, leaned back against the car, from which position he was thrown to the ground when the train gave a sudden jerk as it increased its speed after leaving the bridge, the court laid emphasis upon the fact that neither the company nor its agents knew of the passenger being on the platform, and had nothing to do with his being there.

For a discussion of the general question of a street car passenger's negligence in riding on platform, see Capital Traction Co. v. Brown, 12 L.R.A. (N.S.) 831, and the case note thereto; as to riding there as affecting right to recover for injury through accident to train or car, see the case note to Miller v. Chicago, St. P. M. & O. R. Co. 17 L.R.A. (N.S.) 158; as to the question of passenger's contributory negligence in riding or standing on running board of open_street car, see Burns v. Johnstown Pass. R. Co. 2 L.R.A. (N.S.) 1191; Harding v. Philadelphia Rapid Transit Co. 10 L.R.A. (N.S.) 352, and Lobner v. Metropolitan Street R. Co. post, 972, and the case notes appended thereto.

conflicting duties. 3. The fireman of a locomotive is not absolved from the duty of keeping a lookout for persons for whom a railroad is bound to keep a lookout by the fact that he may have occasion at that moment to put coal into the fire box of the engine.

PPEAL by defendant from a judgment of

the Common Pleas Branch, Third Division, of the Circuit Court for Jefferson County, in plaintiff's favor in an action brought to recover damages for the alleged negligent killing of his intestate. Reversed. The facts are stated in the opinion. because he was adjusting some part of the engine, and the fireman was busy with the fires. In holding the company liable, the court says that if the engineer "neglected either to look himself or require his fireman to look if his engine required his own attention during all the time he was running through said bottoms, then he failed to exercise that ordinary care which a reasonable and prudent man would have exercised un-. der the circumstances, to avoid killing the

Messrs. H. L. Stone and Benjamin D. Į Gilmore, instituted this action against apWarfield, with Messrs. Helm & Helm, for appellant:

The "last clear chance" to avoid the injury was with decedent, and there was no evidence tending to support the inference that her peril could have been discovered in time to avoid the accident.

pellant, Louisville & Nashville Railroad Company, to recover damages for the death of Julia Gilmore, which is alleged to have resulted from the negligence of appellant. From a judgment for $5,000 in favor of appellee, this appeal is prosecuted.

The death of Mrs. Gilmore occurred under the following circumstances: Appellant maintains double tracks between Louisville and Cincinnati, which, in the former city, parallel Frankfort avenue, a public thoroughfare, for a distance of about 2 miles, the street being on the south and the tracks on the north. Running northwardly from Frankfort avenue and crossing appellant's tracks are various public streets. One of these streets,-Bayly avenue,-which is lo

Southern R. Co. v. Barbour, 21 Ky. L. Rep. 226, 51 S. W. 159; Louisville & N. R. Co. v. Cummins, 111 Ky. 338, 63 S. W. 594; Paducah & M. R. Co. v. Hoehl, 12 Bush, 41; Illinois C. R. Co. v. Dick, 91 Ky. 441, 15 S. W. 665; Johnson v. Louisville & N. R. Co. 91 Ky. 653, 25 S. W. 754; Wright v. Cincinnati, N. O. & T. P. R. Co. 94 Ky. 120, 21 S. W. 581; Chesapeake & O. R. Co. v. Gunter, 108 Ky. 362, 56 S. W. 527; Rupard v. Chesapeake & O. R. Co. 88 Ky. 285, 7 L.R.A.cated about three fourths of a mile within 316, 11 S. W. 70; Louisville & N. R. Co. v. Sights, 121 Ky. 203, 89 S. W. 132; Maysville v. Guilfoyle, 110 Ky. 673, 62 S. W. 493; Louisville & N. R. Co. v. Fox, 20 Ky. L. Rep. 81, 42 S. W. 922; Louisville & N. R. Co. v. Mounce, 28 Ky. L. Rep. 936, 90 S. W. 956; Jacobs v. Ohio & B. S. R. Co. 20 Ky. L. Rep. 189, 45 S. W. 509.

the eastern limits of Louisville, extends from Frankfort avenue two squares northward to Field avenue. At the time of the accident double tracks were also maintained on Frankfort avenue by the Louisville Railway Company. These tracks, at a point opposite Bayly avenue, merge into a single track, which thereafter continues eastwardly for Messrs. Forcht & Field and Dodd & several hundred feet, and then changes into Dodd for appellee. a double track opposite Crescent avenue. About 160 feet west of Bayly avenue is an

court:

Clay, C., delivered the opinion of the alley extending from the north to the right of way of appellant on the south, and openT. M. Gilmore, administrator of Julia ing thereon. Immediately opposite the fireman was looking out for animals on | Va. 50, 51 S. E. 211, the fact that the firethe track, did not make the company liable for the death of the animal killed."

In O'Brien v. Wisconsin C. R. Co. 119 Wis. 7, 96 N. W. 424, in which a child was killed at a crossing where it could not be seen by the engineer, but might have been seen by the fireman, the court held that it was not negligence for the fireman to get down, in the performance of other duties, where he could not look ahead.

In Eddy v. Sedgwick (Tex.) 18 S. W. 564, it was held that the fact that the fireman was looking back to see when the train cleared a switch was not negligence as to one on the track ahead, who was guilty of contributory negligence; and in Houston & T. C. R. Co. v. Smith, 77 Tex. 179, 13 S. W. 972, it was held that the fact that the engineer did not see a boy on the track in time to stop, because, just before seeing him, he was looking back at the train, as a rule of the company required, did not establish negligence.

man, from whose side only, plaintiffs rig could be seen approaching a crossing, was engaged in the duty of hooking the fire until too late to stop the train, was held not to show negligence.

In Louisville & N. R. Co. v. Creighton, 196 Ky. 42, 50 S. W. 227, the court held that while it was negligence for the engineer momentarily to withdraw his attention from the track while passing along a city street, it was not negligence for the fireman to be engaged in coaling the engine, although the child injured could be seen only from the fireman's side.

In Rogers v. Georgia R. Co. 100 Ga. 699, 62 Am. St. Rep. 351, 28 S. E. 457, where the animal could not be seen by the engineer because of a curve, the facts that the fireman was coaling and the company did not provide a third person to keep a lookout, were held not to constitute negligence. Overruling Northeastern R. Co. v. Martin, 78 Ga. 603, 3 S. E. 701, on this point.

In Mobile & O. R. Co. v. Holliday, 79 Miss. In Ex parte Stell, 4 Hughes, 157, Fed. 294, 30 So. 820, it was held that defendant | Cas. No. 13,358, it was held that the fact was not liable for killing a dog, though the that the engineer took his eyes momentarily engineer and fireman were engaged in other from the track, to avoid being struck by duties, so they did not look ahead while the furnace door as it was thrown open the engine ran about 1 mile. The nature of by the fireman, during which time a child the animal, however, seems to have been the got on the track, did not constitute negliprincipal consideration in denying recovery. | gence. In Brammer v. Norfolk & W. R. Co. 104

In Bottoms v. Seaboard & R. R. Co. 114

shooting firecrackers and torpedoes on the sidewalk and in the street adjacent to the drug store, and considerable confusion prevailed. Mrs. Gilmore walked rapidly across

mouth of this alley, and on the south side of Frankfort avenue, is Moore's drug store. At the time of the accident there was a plank opposite the mouth of the alley, which led across a ditch on the north side of appel- | the street, a distance of 64 feet; thence 20 lant's right of way. On the south side of appellant's right of way there was a ditch, across which a log or cross-tie was placed. Beginning at a point some 200 or 300 feet east of Bayly avenue the tracks of appellant describe a curve, the outer rim being to the north, and ending between Bayly avenue and the alley. On the line between Frankfort avenue and the right of way are telephone, telegraph, electric light, and trolley poles. The street is slightly elevated above the tracks. At a point about 1,000 feet east of the place of the accident the elevation is about 5 feet.

feet more onto the first, or southernmost, track of appellant; thence 10 feet more, close to, but not on, the second track, where she was struck. The train that struck Mrs. Gilmore was a freight train consisting of an engine, twenty-two loaded and two empty cars, and a caboose. It was on time, and was running at about 12 to 15 miles per hour. When the accident occurred the engineer was keeping a lookout, and the bell of the engine was ringing. The fireman was also on a lookout until the engine was within a few feet of Bayly avenue. After looking ahead, and seeing no one either on or approaching Bayly or Hite avenues, he stepped down in the deck to put coal in the furnace. As he ceased shoveling and stepped to the gangway he saw the body of Mrs. Gilmore fall from the pilot beam. He then notified the engineer, and the train was

The evidence conduces to show that the pathway leading from the mouth of the alley across appellant's tracks to Moore's drug store had been used by the public for such a length of time as to raise the presumption of knowledge or acquiescence on the part of appellant. It is not contended that the engineer saw, or could have seen, Mrs. Gilmore

The death of Mrs. Gilmore occurred about 5 o'clock on the afternoon of July 4, 1905. The testimony shows that she left the rear of her premises and crossed the tracks of appellant and Frankfort avenue, and went to Moore's drug store, on the south side of Frankfort avenue. Leaving the drug store, | stopped. at which time it was broad daylight, she allowed an interurban car of the Pewee valley line to pass. At the time there was a Fourth of July picnic in progress at a Catholic institution in the neighborhood, and a great many street cars of the Louisville Railway Company were passing to and fro. Children of the neighborhood were N. C. 699, 25 L.R.A. 784, 41 Am. St. Rep. | & S. L. R. Co. 32 Utah, 276, 10 L.R.A. (N.S.) 799, 19 S. E. 730, it was held that the fact 486, 90 Pac. 402, which was an action for that a child came on the track and was injury to a person while on the track killed while the engineer and fireman were engaged in other duties so as to prevent them from seeing it did not constitute negligence; but this case was disapproved in Jeffries v. Seaboard Air Line R. Co. 129 N. C. 236, 39 S. E. 836, quoting Arrowood v. South Carolina & G. Extension R. Co. 126 N. C. 629, 36 S. E. 151.

A number of cases, while not presenting the question as squarely as those already mentioned, tend to support those last cited by declaring that it is the duty of such employees to keep such a lookout as is consistent with their other duties.

Thus, in East Tennessee, V. & G. R. Co. v. Bayliss, 77 Ala. 435, 54 Am. Rep. 69, the court said: "A proper lookout at all times, along the track and near the road, is a duty enjoined by law. An engineer has other equally important duties in operating a train, which demand portions of his time and attention. It is not meant that the engineer shall keep his eye steadily on the track before him, to the neglect of his other equally imperative duties. He meets this requirement when he bestows on the service that steady, regular care and watchfulness which his other duties allow a very careful and prudent person to give to it.'" And in Teakle v. San Pedro, L. A.

where people customarily went, the court said: "Train operatives ought to be required to take notice of such usage, and to anticipate the probable presence of persons on or near the track, and to observe a reasonable lookout when their attention is not directed to the performance of other duties."

Expressions similar to these are found in Garner v. Trumbull, 36 C. C. A. 361, 94 Fed. 321; Western R. Co. v. Lazarus, 88 Ala. 453, 6 So. 877; Central R. Co. v. Dumas, 131 Ala. 172, 30 So. 867; St. Louis, I. M. & S. R. Co. v. Lewis, 60 Ark. 416, 30 S. W. 765, 1135; Crawford v. Southern R. Co. 106 Ga. 870, 33 S. E. 826; Chicago & A. R. Co. v. Legg, 32 Ill. App. 218; Omaha & R. Valley R. Co. v. Wright, 47 Neb. 886, 66 N. W. 842; Stading v. Chicago, St. P. M. & O. R. Co. 78 Neb. 566, 111 N. W. 460; Smith v. Norfolk & S. R. Co. 114 N. C. 728, 25 L.R.A. 287n, 19 S. E. 863, 923; Wheeling & L. E. R. Co. v. Parker, 29 Ohio C. C. 1.

In St. Louis, I. M. & S. R. Co. v. Dysart (Ark.) 116 S. W. 224, where a fireman was injured by a collision at a crossing with another road, it was held that whether the fact that he was coaling at the time instead of keeping a lookout was contributory, negligence was a question for the jury.