ments, attracts crowds to its stations for the purpose of taking passage upon its trains or alighting therefrom, it puts itself under the manifest duty of providing a sufficient number of guards to control the crowds and prevent persons therein from injuring each other;169 and it may well be assumed that this duty equally rests upon a railway carrier of passengers where its traffic is, from any cause, congested.

§ 2707. Duty to Provide Safe Passage to and from Mail Cars.170. It is actionable negligence for a railroad company to fail to furnish a reasonably safe passage to and from its mail cars, for the purpose of mailing letters while stopping at its regular stations, when such company carries the mail under a contract with the United States, by whose regulations postal clerks on mail trains are required to receive at the cars stamped letters and to sell stamps.171

2708. Duty to Provide Safe Passage to and from Refreshment Rooms.172-Railway companies are bound to afford to passengers on long routes, easy and safe modes and reasonable time for obtaining food, and safe ingress and egress to and from refreshment stations; and where a passenger sustains injury on returning from such a station to a train, by want of a sufficient light and the removal of the train without notice in his absence, the company becomes liable to him in damages.173

§ 2709. Duty to Provide Safe Passage-Ways to and from Baggage Rooms.-Passengers, or intending passengers, who visit the baggage room of a railway company, in order to look after their baggage or have it properly checked, are not intruders upon that portion of the premises of the company, but are lawfully there upon business connected with the company, by its implied invitation, and have the right to have reasonable care exercised by the company to the end of keeping that portion of its premises over which they must pass on such errands, reasonably safe and convenient; and if a passenger, or an intending passenger, is injured without his fault, through a failure of this duty on the part of the company, he can recover damages.174 It was so held where a female passenger, after purchasing a ticket, took the usual passage-way to the baggage room, to obtain a check for her baggage, and was injured by being knocked down by cabmen scuffling in the passage-way, which fact was either known or ought to have been known to the railway company, in the exercise of ordinary Nor was the passenger guilty of contributory negligence as matter of law, because she assumed that the usual passage-way, which she took, was free from danger; but whether the dangers existing therein, which were the cause of the injury which she received, might have been seen and avoided in the exercise of ordinary care, was a question for the jury.176 Nor was it a defense, on the part of the railway company, that there was another way which she might have taken without danger, where the way which she did take was the usual one.1 177

care. 175

§ 2710. Duty to Provide Safe Passage to and from its Telegraph Office.178-Whatever portion of the station is designed for the convenience of passengers, though having no necessary connection with the taking and leaving of trains, the company will be under the same duty to keep in proper condition of repair. Thus, having provided a telegraph office at one of its stations, for the use of its patrons, the company will be responsible to one of its passengers, who is injured solely because of the company's negligence in failing to keep in proper condition the platform erected by them over which a passenger, in alighting from the cars, must pass to reach the telegraph office.179

174 Exton v. Central R. Co., 63 N. J. L. 356; s. c. 46 Atl. Rep. 1099; aff'g s. c. 62 N. J. L. 7; s. c. 42 Atl. Rep. 486.

175 Exton v. Central R. Co., supra. 176 Exton v. Central R. Co., supra.

177 Exton v. Central R. Co., supra. 178 This section is cited in § 2682. 179 Clussman v. Long Island &c. R. Co., 9 Hun (N. Y.) 618; s. c. aff'd 73 N. Y. 606.

$2711. Passengers Injured by Throwing Mail Sacks from Moving Trains. A recent contrivance, by reason of which a mail train can run past a small station at a high rate of speed, and by means of which the mail agent thereon can throw the mail sack from the car and the station agent catch it with an appliance devised for that purpose, has resulted in frequent injuries to passengers standing upon the station platform, and in a consequent crop of litigation.180 Most of the cases which have come under the observation of the author hold that where a railroad company resorts to or permits the use of this contrivance to avoid the necessity of stopping at the station, and thereby a passenger standing upon the platform is struck and injured, the company will be liable.181 And this is so, although the act of throwing the mail sack is not the act of an agent of the railway company, but the act of the United States mail clerk, and although the company has no right to interfere with him in the discharge of his duties, provided it has notice of his practice of throwing sacks in this way, and takes no precautions to prevent persons lawfully on the platform from being thereby injured. 182 The ground on which a railway company has been held liable for this species of injury to its passengers, although committed by a servant of the Government, is the failure of its duty to report to the Post-Office Department breaches of its rules in this respect, and to take such further steps as may be necessary to prevent a continuance of the practice. The duty of the railway company to take precautions against injuring persons on its station platforms by this method of discharging the mails from its passing trains, is not confined to those who are

183

180 See, on this subject, Vol. II, 57 N. W. Rep. 1058; Carpenter v. § 1847.

181 Galloway v. Chicago &c. R. Co., 56 Minn. 346; s. c. 23 L. R. A. 442; 57 N. W. Rep. 1058; Carpenter v. Boston &c. R. Co., 97 N. Y. 494; s. c. 47 Am. Rep. 540 (Rapallo and Finch, JJ., dissenting); Ohio &c. R. Co. v. Simms, 43 Ill. App. 260; Sargent v. St. Louis &c. R. Co., 114 Mo. 348; s. c. 19 L. R. A. 460; 21 S. W. Rep. 823; Snow v. Fitchburg &c. R. Co., 136 Mass. 552. That a railway company is not liable to a passenger who, on entering its station to board an approaching train, is struck and injured by a mail bag thrown therefrom by a clerk in the employ of the Post-Office Department of the United States,-was held in Carpenter v. Boston &c. R. Co., 24 Hun (N. Y.) 104.

182 Galloway v. Chicago &c. R. Co., 56 Minn. 346; s. c. 23 L. R. A. 442;

Boston &c. R. Co., 97 N. Y. 494; s. c. 47 Am. Rep. 540; Sargent v. St. Louis &c. R. Co., 114 Mo. 348; s. C. 19 L. R. A. 460; 21 S. W. Rep. 823.

183 Southern R. Co. v. Rhodes, 58 U. S. App. 349; s. c. 30 C. C. A. 157; 86 Fed. Rep. 422. The court held that the plaintiff must show that the custom of throwing off mail bags in a dangerous way had existed for a sufficient time to charge the com. pany with notice. This the court held his evidence failed to do, and a verdict for the plaintiff was set aside. The court held that it was the company's duty to its passengers to notify the Government officials of the practice of its employés in acting in a manner dangerous to its passengers, and to take such further steps as were necessary to prevent the continuance of the practice.

passengers in a strict sense, but it extends to those waiting there to take passage on its trains ;184 to persons coming on such platforms to purchase papers from its train boys, who are permitted so to sell them; ;185 and, in short, to any person who is injured when lawfully there, and in the exercise of reasonable care on his part.186

§ 2712. Application of these Principles to Street Railways.— The duty of a common carrier of passengers to provide a reasonably safe place for receiving and discharging his passengers, can have but a qualified application to street railways, where the passengers are usually taken up and discharged upon the surface of the street. Such a company is not, for instance, answerable in damages on the footing of negligence, because its motorman stopped the car at a place where the pavement of the street was partially torn up for repairs, without informing the passenger of its condition, and warning him to be cautious in alighting from the car, where its condition was plainly apparent.187 Nor is such a company responsible to a passenger for the safety of a place at which a car stops because of an obstruction on the track, as a place for getting off, whether the car, at the time the passenger undertakes to get off, is in motion or at rest, where the conductor does not see the passenger, and is not aware of his purpose to alight at the time the attempt to get off is made.188 Nor is it responsible for any injury incurred by a passenger in attempting to alight, without its authority, after the stoppage at a safe place has been made, and the car has been put in motion, if a reasonable time for alighting has been allowed while the car is at rest, and the conductor does not know that the passenger intends to get off at that place, and does not see him attempt to get off while the car is in motion, in time to warn or prevent him from doing so.189 But it has been held that a street railway company is liable for an injury to a passenger caused by her falling out of a "transfer" car used as a waiting-room, because of the sudden opening of the door against which she was leaning, where she would not have been in that position had not an employé in charge of the car directed her to move from a safe place, where she stood, without warning

194 Snow v. Fitchburg &c. R. Co., 136 Mass. 552; Carpenter v. Boston &c. R. Co., 97 N. Y. 494; s. c. 49 Am. Rep. 540 (Rapallo and Finch, JJ., dissenting).

185 Ohio &c. R. Co. v. Simms, 43 Ill. App. 260.

186 Ohio &c. R. Co. v. Simms, 43 Ill. App. 260.

187 Bigelow v. West End Street R. Co., 161 Mass. 393; s. c. 37 N. E. Rep. 367.

188 Augusta R. Co. v. Glover, 92 Ga. 132; s. c. 18 S. E. Rep. 406.

189 Augusta R. Co. v. Glover, 92 Ga. 132; s. c. 18 S. E. Rep. 406.

her of the danger, and such danger was not apparent or known to her.190 The fact that no one, without some previous knowledge, can be expected to provide against the contingency of a street car, with the railway upon which it stands, coming upon him by a side movement, imposes upon the company moving their cars from one track to another in this unusual manner, a degree of care in so doing proportionate to the dangers arising therefrom.191

§ 2713. In the Case of Passengers on Elevated Railways.— Elevated railways in cities, whose trains are propelled by steam engines, and which stop only at stations, stand under very much the same duty in regard to keeping their stations, platforms, and premises reasonably safe, as the law puts upon other steam railway carriers. For example, an elevated railway company is answerable in damages to a passenger who is injured in consequence of steps leading to its stations being allowed to remain covered with ice.192 On the other hand, it has been held that where such a company has provided a suitable covering for the staircase leading to its station, a rubber tip for each step and a hand rail on each side to aid passengers in going down, its failure to throw ashes or sawdust upon the steps, during the continuance of a storm of sleet and snow which lasts from midnight to 4 o'clock in the morning, and which renders the sidewalks very slippery, or to clean off the steps within two hours after the termination of the storm,-is not such negligence as to render it liable for injuries resulting to a passenger from falling upon the steps when attempting to descend them, especially when he knows of the storm and its effects.193 Such a railway company is not liable in damages for a hurt received by a passenger in consequence of leaving a space of from three and a half to four inches between the edge of its cars and the platform at the ends of the train and of six to seven inches at the middle portion of the train, where the station is upon a curve so that the platform is convex in relation to the train; since, in such a case, room must be left for the swaying and oscillation of the cars.194 Evidence of negligence on the part of

100 Prothero v. Citizens' Street R. Co., 134 Ind. 431; s. c. 33 N. E. Rep. 765.

194 Ryan v. Manhattan R. Co., 121 N. Y. 126; s. c. 23 N. E. Rep. 1131; 30 N. Y. St. Rep. 624. So, in the

191 Gordon v. Grand Street &c. R. opinion of one of the Appellate DiCo., 40 Barb. (N. Y.) 546.

192 Ainley v. Manhattan R. Co., 47 Hun (N. Y.) 206; s. c. 13 N. Y. St. Rep. 557; Timpson v. Manhattan R. Co., 52 Hun (N. Y.) 489; s. c. 24 N. Y. St. Rep. 629; 5 N. Y. Supp. 684.

193 Kelly v. Manhattan R. Co., 112 N. Y. 443; s. c. 20 N. E. Rep. 383.

visions of the Supreme Court of New York, the fact that a banana peel was on a stairway leading to the station of an elevated railway, on which a passenger stepped, slipped, and fell, did not furnish evidence of negligence against the railway company: Benson v. Man