the train, after it had moved away from the station platform and then stopped for her, where the ground was so low that she could not get aboard without assistance.567 It is a necessary conclusion from the decisions that it is within the scope of the authority of a brakeman to assist on and off the train a passenger whose condition is such as to require assistance.568 But the fact that the conductor attempts to assist a person who is negligently boarding the train, but releases. him at his own request, after which he falls, and is run over, will not charge the company with negligence.569 SUBDIVISION 3. Duty to Enable Passenger to Board Train and Become Seated. 2856. Negligence of passenger in- 2858. Failing to provide passengers with seats. § 2854. Duty to Afford Reasonable Time for Passenger to Get Aboard Train. It is the duty of a railway carrier of passengers to stop its passenger trains at stations where passengers are received, for a sufficient length of time to enable them, in the exercise of reasonable promptness, to get on board its cars and to get settled therein, before the train is started.570 It has been held that where, after at 507 Western &c. R. Co. v. Voils, 98 Ga. 446; s. c. 35 L. R. A. 655. 508 International &c. R. Co. v. Anderson, 15 Tex. Civ. App. 180; s. c. 53 S. W. Rep. 606; Western &c. R. Co. v. Voils, 98 Ga. 446; s. c. 35 L. R. A. 655; 26 S. E. Rep. 483. 509 Baltimore Traction Co. v. State, 78 Md. 409; s. c. 28 Atl. Rep. 397. Street railway company not liable to sick passenger who, after being helped off its vehicle at the terminus of its route and led to the front of the station at or near a public street, and left at a place where the way is open in the direction in which he wishes to go, afterwards wanders back and, twenty minutes later, falls under a car and is hurt: Bageard v. Consolidated Traction Co., 64 N. J. L. 316; s. c. 45 Atl. Rep. 620. If a railway company stops its train at an unsafe place, and a female passenger, while attempting to alight, receives the as sistance of a brakeman who stumbles and falls on top of her,-it may be liable for negligence in stopping the train at that place, since that breach of duty was the efficient cause in producing the injury, and the fall of the brakeman was but an incident in the chain of causation: Louisville &c. R. Co. v. Holsapple, 12 Ind. App. 301; s. c. 38 N. E. Rep. 1107. 570 Gulf &c. R. Co. v. Powers, 4 Tex. Civ. App. 228; s. c. 23 S. W. Rep. 325; Curtis v. Detroit &c. R. Co., 27 Wis. 158; s. c. 23 Wis. 152; Poole v. Georgia &c. Co., 89 Ga. 320; s. c. 15 S. E. Rep. 321; Gulf &c. R. Co. v. Roundtree (Tex. Civ. App.), 25 S. W. Rep. 989; International &c. R. Co. v. Copeland, 60 Tex. 325; McKenna v. North Hudson &c. R. Co., 64 N. J. L. 106; s. c. 45 Atl. Rep. 776; Texas &c. R. Co. v. Mayfield (Tex. Civ. App.), 56 S. W. Rep. 942; Deming v. Chicago &c. R. Co., 80 taching an empty car, the conductor of such a train peremptorily calls out "all aboard," before it is safe for passengers to attempt to enter the car, he is guilty of such negligence as will authorize a recovery against the company for an injury to a passenger, although the remark was not in fact intended for the passengers. In like manner, an elevated railroad company which permits one to enter upon the steps of a car at a station where it has stopped to take on passengers, owes him the duty of waiting a reasonable time to allow him to get safely on the car, and to permit the conductor to close behind him the gate used to protect passengers from falling from the car.572 571 § 2855. Further of this Subject.-On the other hand, it may be stated as a general rule, that the company discharges its duty when Mo. App. 152; s. c. 2 Mo. App. Rep. 547. 571 Lent v. New York &c. R. Co., 120 N. Y. 467; s. c. 31 N. Y. St. Rep. 538; 8 Rail. & Corp. L. J. 126; 24 N. E. Rep. 653. Where a railroad company negligently failed to give a female passenger a reasonable time in which to obtain a seat before starting the train, and the train was started with a series of jolts and jerks such as endangered the safety of unseated passengers, and the person who came on board to assist such passenger was thrown against her by the jerking motion of the car, knocking her against a seat and injuring her, the company was held liable to her; nor did the fact that she was hurt by her assistant, not a passenger, being thrown against her, make any difference,especially in view of the fact that the conductor saw such person and knew his object in coming aboard the train with her: Macon &c. R. Co. v. Moore, 108 Ga. 84; s. c. 6 Am. Neg. Rep. 451; 15 Am. & Eng. Rail. Cas. (N. S.) 842; 33 S. E. Rep. 889. So, where the conductor of an elevated railroad car, without having rung a bell or given a signal, attempted to close the gate before the train started, and while a passenger was in the act of stepping on,-it was held that he could maintain an action against the corporation: McQuade v. Manhattan R. Co., 53 N. Y. Super. Ct. 91. State of facts under which an instruction implying that a female passenger, arriving late, had a right to board the train, was erroneous: Paulitsch v. New York &c. R. Co., 102 N. Y. 280; reversing s. c. 50 N. Y. Super. Ct. 240. VOL. 3 THOMP. NEG.-21 572 Barth v. Kansas City &c. R. Co., 142 Mo. 535; s. c. 10 Am. & Eng. Rail. Cas. (N. S.) 281; 44 S. W. Rep. 778. State of evidence in which the act of a passenger attempting to mount an elevated train and in being thrown to the street by the starting of it, was held to present a question for the jury as to the negligence of the company: McKenna v. North Hudson County R. Co., 64 N. J. L. 106; s. c. 45 Atl. Rep. 776. Circumstances under which the act of the conductor in starting the train so soon after the call to get aboard, that a passenger, endeavoring to mount the train, stumbled over an oil bucket negligently left near the edge of the platform, and received an injury,— was held to present a question of negligence for the jury: Texas &c. R. Co. v. Mayfield (Tex. Civ. App.), 56 S: W. Rep. 942. In the same case an instruction to the effect that, if the jury found that the defendant negligently started the train and thereby injured the plaintiff, they might find for the plaintiff, was approved: Texas &c. R. Co. v. Mayfield, supra. A person intending to take passage on a through passenger train arriving at a way station is authorized to presume that it is waiting for passengers so long as it remains there: Chicago &c. R. Co. v. Chancellor, 60 Ill. App. 525 (woman killed while walking across a track, under circumstances which warranted the jury in finding that she was on her way to take passage on one of the defendant's trains then waiting at the station, by being struck by a backing freight train). 321 it stops its passenger train for a reasonable length of time and gives the usual or customary signal before starting it. It follows from this statement that its conductors and trainmen are not bound to watch each intending passenger and to see that he is on board before starting the train; but that passengers are presumed to take care of themselves, and avail themselves of the reasonable opportunity to board the train which is afforded them. When, therefore, the conductor of a mixed train, who had stopped it for the usual time, told a dilatory passenger that he must get on the coach where it then stood, which was seventy-five or a hundred yards from the station, it was held that the conductor was not bound, in order to relieve the , company from liability, to look after the passenger's movements and to refrain from giving the signals to move the train until assured that the passenger was on board.578 But it has been held that one who unlawfully flagged a train at a point where the trainmen had no reason to expect a passenger, and who was injured by the sudden. starting of the train while he was attempting to get on without the knowledge of the trainmen, can not recover against the company, although the conductor collected from him the fare due for a passenger after the train left the next station.574 It has been well reasoned that an invitation to board a train while it is moving at a slow rate of speed implies an assurance that the speed will not be accelerated until all persons are aboard, and imposes the duty on the trainmen not to increase the speed without knowing that no person is so situated as to be imperiled thereby; so that, if a passenger acts upon such an invitation, where the danger is not obvious or glaring, and is thereby hurt, without his own fault, he will have an action for damages against the company.575 If the conduct of the trainmen is such as to constitute an invitation to a passenger to board the train, and, while in the exercise of ordinary care, he is attempting to do so, the starting of the train without paying any attention to him, whereby he is injured, will make a clear case for the recovery of damages against the company." 576 § 2856. Negligence of Passenger Injured in Boarding Train While in Motion.577-This subject will be considered in the chapter on Contributory Negligence,577a but it may be said here that whether or not it will be deemed negligence for a person to attempt to board a 573 Browne v. Raleigh &c. R. Co., 108 N. C. 34; s. c. 12 S. E. Rep. 958. 574 Georgia &c. R. Co. v. Robinson, 68 Miss. 643; s. c. 10 South. Rep. 60. 575 Montgomery &c. R. Co. v. Stew art, 91 Ala. 421; s. c. 8 South. Rep. 708. 576 Chicago &c. R. Co. v. Drake, 33 Ill. App. 114. 577 This section is cited in § 3001. a See post, § 2987, et seq. train, after it has started to move from the station, will depend upon the speed at which the train is moving, the physical condition of the passenger himself, and other surrounding circumstances. It is well known that trainmen habitually board their trains after they commence to move, and that passengers frequently do so; and it would seem to follow, from the mere consideration of this fact, that negligence can not be imputed to such an act as matter of law; though clearly it may be performed under such conditions that a jury could not hesitate about the conclusion of contributory negligence. The proper conclusion would seem to be that, if the circumstances are such that it is obviously rash for the passenger to attempt to board the train, and he is hurt in making the attempt, he will not be allowed to recover damages from the company, although it may have been at fault in not stopping the train a sufficient length of time to enable him to get on with safety.578 If a passenger train stops at a station a reasonable length of time to enable passengers to get on board, and a passenger does not avail himself of this opportunity, but waits until the train has started and acquired considerable speed, and then attempts to get on board, holding on the railing of the rear car, and is wrenched and hurt in consequence of such attempt,he can not recover damages from the company for the injury. But if, while so attempting to get on board the train, he is violently assaulted by the conductor, then it seems he may recover from the company such damages as he received through the assault; and the instructions should be so framed as to exclude from the minds of the jury the idea that he can recover damages for those injuries which were consequent on his attempt to get upon the train under such circumstances.579 2857. Duty to Afford Time to Enable Passengers to Become Seated.580 The sudden starting of a passenger train while passengers are standing in the coaches and before they have had time to find seats, and get seated, has been a frequent cause of injuries to them. It has been held, on the one hand, that it is not negligence to start a railway train before the passengers coming aboard have had time to get seated, unless there is some special reason to the contrary, as in the case of a person known to be sick, lame, or otherwise incapable of caring for himself.581 It is obvious upon a little 578 See, for illustration, Bacon v. Delaware &c. Co., 143 Pa. St. 14; s. c. 21 Atl. Rep. 1002,-where the passenger was killed in attempting to board the train. 579 Wabash &c. R. Co. v. Rector, 104 Ill. 296. 580 This section is cited in § 2970. 581 Yarnell v. Kansas City &c. R. Co., 113 Mo. 570; s. c. 18 L. R. A. reflection that this must be so; otherwise the promptness of railway service would be subject to the dilatory habits of passengers, and trains could not be run on their schedule time, and the safety of the passengers would be thereby endangered. Besides, there are times during conventions, fairs, and other public gatherings, when, notwithstanding the best efforts of railway carriers, their trains are congested. Hence, if the rule obtained that a railway carrier could. not start its train until all the passengers were seated, it could not at such a time start it at all. The fact that the passenger is a "fleshy" woman, encumbered with a number of children, does not create a special reason for delaying to start a passenger train until she has become seated;582 but it is otherwise in case of a female passenger who is a cripple to such an extent that she is compelled to use a crutch and a stick.583 But the contrary rule has been applied even in respect of a horse railroad.584 § 2858. Failing to Provide Passengers with Seats.-There is no doubt that, under ordinary circumstances, the failure of a railroad 599; 21 S. W. Rep. 1; Louisville &c. R. Co. v. Hale, 19 Ky. L. Rep. 1651; s. c. 42 L. R. A. 293; 44 S. W. Rep. 213; 10 Am. & Eng. Rail. Cas. (N. S.) 73; 3 Am. Neg. Rep. 652; Hanks v. Chicago &c. R. Co., 60 Mo. App. 274 (blind passenger). A railroad company is not bound, as matter of law, to refrain from starting its train until a female passenger, though carrying a baby and a basket, has had sufficient time to get into a seat: Middlesborough R. Co. v. Webster, 21 Ky. L. Rep. 3; s. c. 6 Am. Neg. Rep. 523; 14 Am. & Eng. Rail. Cas. 209; 50 S. 'W. Rep. 843 (no off. rep.). 582 Louisville &c. R. Co. v. Hale, 102 Ky. 600; s. c. 19 Ky. L. Rep. 1651; 42 L. R. A. 293; 44 S. W. Rep. 213; 10 Am. & Eng. Rail. Cas. (N. S.) 73; 3 Am. Neg. Rep. 652. 583 Central &c. R. Co. v. Holloway (Tex. Civ. App.), 54 S. W. Rep. 419 (no off. rep.). And there is a holding to the effect that the mere act of starting a train on an elevated railway with a jerk, will not render the company liable to a passenger who is thrown down and injured thereby, while he is leisurely looking around for a seat, where it is the mere consequence of starting the train and does not disturb any other passenger: De Soucey v. Manhattan R. Co., 39 N. Y. St. Rep. 79. 584 Dougherty v. Missouri R. Co., 9 Mo. App. 478; s. c. aff'd 81 Mo. 325; cited with approval in Coudy v. St. Louis &c. R. Co., 85 Mo. 85. See, also, Clay v. Chicago &c. R. Co., 17 Mo. App. 631. Where the testimony showed that the plaintiff, after dark, entered a street car of the defendant's line, which, after being hailed by him, had stopped to allow him to get on, and that, in order to find a vacant place, he had moved towards the front end of the car, and, as he was about to take his seat, the car started with a sudden jerk, which threw him off his feet; that he had an umbrella in his right hand; that he threw out his left hand to catch the strap, but missed it, and his hand went through a window and was badly lacerated: that the car was started with a jerk which was unusual on that line: and that, by holding the lines tight in one hand and controlling the brake with the other, such a car could be made to start without a jerk,-it was held that, although the case was a close one, there was a question to go to the jury as to whether the driver of the defendant was negligent: Dougherty v. Missouri R. Co., 9 Mo. App. 478; s. c. aff'd 81 Mo. 325. |