puts upon carriers of passengers,600 continues and applies in respect of the opportunity which the carrier must afford the passenger to alight from his vehicle in safety. So that, until the passenger has alighted from the carrier's vehicle, the carrier is bound to exercise, to the end of promoting his safety, the highest degree of care,601 and all that human vigilance and foresight can reasonably do consistent with the practicable conduct of his business;602 which degree of care has been described as such care as persons of the greatest care and prudence would use on similar occasions.603

§ 2863. Duty of Conductor to Know whether he Has on Board Passengers Desiring to Alight at a Particular Station.-The conductor of a passenger train has been described as its general agent for the purpose of discharging the duty of the company toward passengers when alighting from the train.604 It is his duty to know whether or not he has a passenger on board intending to get off at a particular station, and if he has such a passenger, it is his duty to have the station seasonably announced and to stop the train for a sufficient length of time to enable the passenger to alight with convenience and in safety.605 When he examines the ticket of a passenger which calls for a certain destination, this charges him with knowledge that the passenger desires to get off at that destination; and it has been quaintly reasoned that when that destination is reached, he has no right to assume, because on looking into the coach he does not see the passenger in it, that the latter has leaped out into the dark from the train while in motion.606 It follows that the fact that the conductor does not know that a particular passenger intends to leave the car at a particular station, and does not see him in the act of leaving it, does not excuse the company for not giving such passenger reasonable time to get off the train, unless he is so situated as to conceal himself from the conductor's observation.607

§ 2864. Duty Discharged by Waiting a Reasonable Time.-But the consensus of judicial opinion is that, in the absence of special cir

600 Ante, § 2722, et seq.

601 St. Louis &c. R. Co. v. Finley, 79 Tex. 85; s. c. 15 S. W. Rep. 266; Alexandria &c. R. Co. v. Herndon, 87 Va. 193; s. c. 15 Va. L. J. 118; 12 S. E. Rep. 289.

602 Ante, § 2724; Atchison &c. R. Co. v. Frier (Tex. Civ. App.), 22 S. W. Rep. 6.

003 Texas &c. R. Co. v. Miller, 79 Tex. 78; s. c. 15 S. W. Rep. 264.

004 Louisville &c. R. Co. v. Wood, 113 Ind. 570; s. c. 16 N. E. Rep. 197.

605 Louisville &c. R. Co. v. Mask, 64 Miss. 738; s. c. 2 South. Rep. 360. 60G Louisville &c. R. Co. v. Mask, 64 Miss. 738; s. c. 2 South. Rep. 360.

G07 McDonald v. Long Island R. Co., 116 N. Y. 546; s. c. 27 N. Y. St. Rep. 481; 22 N. E. Rep. 1068.

cumstances requiring extra precautions in favor of passengers, the railway carrier discharges its duty to them when, having announced the station on approaching it, its train is stopped for a reasonable. length of time to enable all passengers on board whose destination. the station is, to alight thereat in safety, and that its train conductor is not required to go through the cars and make an inspection or personal inquiries of passengers, for the purpose of ascertaining whether all have alighted who intended to alight, but is entitled to act on the presumption that all have done so,608 in the absence of knowledge to the contrary.609 If, after the train has stopped for such a reasonable length of time, a passenger remains in his seat, it is not necessarily negligence on the part of the conductor to assume that he does not intend to alight at that station.610 On the other hand, this rule may be varied by special circumstances or conditions. Thus, it has been held that to stop a train drawn by a dummy engine, with no regular stopping place, for a reasonable time, on a request to stop, is not the full measure of the conductor's duty; but that, before starting, he must see that no passenger is in the act of alighting or in a position that will be perilous if the train starts.611

§ 2865. This Reasonable Time must be Adjusted to the Age, the Sex, the Infirmities, the Extreme Youth, of the Passenger, and to Other Circumstances.-This reasonable opportunity to alight in safety, by the exercise of reasonable diligence, is not satisfied by allowing

603 Hurt v. St. Louis &c. R. Co., 94 Mo. 255; s. c. 13 West. Rep. 233; 7 S. W. Rep. 1; Raben v. Central Iowa R. Co., 73 Iowa 579; s. c. 35 N. W. Rep. 645; Straus v. Kansas City &c. R. Co., 75 Mo. 185.

609 Texas &c. R. Co. v. Mitchell (Tex. Civ. App.), 26 S. W. Rep. 154.

610 McDonald v. Long Island R. Co., 116 N. Y. 546; s. c. 27 N. Y. St. Rep. 481; 22 N, E. Rep. 1068. It has been held that the conductor is not bound, after having allowed sufficient time for passengers to get off, regard being had to their age, sex, physical condition and surroundings, to pass along the train and examine the platform of each coach to see whether there are any persons attempting to get off before starting his train; but if he has reason to believe that any passenger who has reached his destination, has not alighted, and that such passenger, though dilatory, may be in the act of alighting, and he starts his

train without examination or inquiry while such passenger is in the act of alighting, and the latter is thereby injured, the company will be liable: Straus v. Kansas City &c. R. Co., 75 Mo. 185. The principle which has been applied by the Supreme Court of Missouri in cases of this kind is that where the concurring negligence of the passenger approximately contributes to produce the injury complained of, there can be no recovery unless the injury is also the direct result of the omission of the defendant, after becoming aware of the danger to which the plaintiff is exposed, to use proper care to avoid injuring him: Nelson v. Atlantic &c. R. Co., 68 Mo. 593; Straus v. Kansas City &c. R. Co., 75 Mo. 185. See, also, Swigert v. Hannibal &c. R. Co., 75 Mo. 475.

611 Highland Ave. &c. R. Co. v. Burt, 92 Ala. 291; s. c. 9 South. Rep. 410.

612

a fixed and unvarying quantity of time, without reference to the circumstances of the case, or the condition of the passenger. The time allowed must be such as will enable the passenger, by the exercise of ordinary care and diligence, considering his or her age, sex, and physical condition, and having regard to the number of passengers seeking to alight at the particular place, to accomplish his exit from the train in safety before it is started forward.61 Even after waiting a reasonable time for the purpose of allowing passengers laboring under no disabilities to alight, the conductor has no right to start the train without using reasonable care to ascertain whether there are any passengers who, from age, extreme youth, or other disability, are slow in their movements to alight, and whether any such persons are in the act of alighting.613 If the train is a crowded excursion train, the company does not discharge its duty in this respect by merely stopping it at a particular station for the length of time that an ordinary passenger train stops; but it must stop long enough for passengers seeking to leave the train to do so in safety, having reference to their numbers; and if it fails in this duty and starts the train while a passenger is in the act of leaving the platform of a car, causing her to fall and injuring her, it must pay damages.Ĝ14

§ 2866. Limit of the Duty of the Railway Company in this Respect: When not Negligent.-The duty of the railway carrier is performed when it stops its train for such a length of time as to allow its passengers, having reference to their numbers, age, sex, physical in

612 Central &c. R. Co. v. Whitehead, 74 Ga. 441; Southern R. Co. v. Mitchell, 98 Tenn. 27; s. c. 40 S. W. Rep. 72; Pierce v. Gray, 67 Ill. App. 158; Killian v. Georgia R. &c. Co., 97 Ga. 727; s. c. 25 S. E. Rep. 384; Toledo &c. R. Co. v. Baddeley, 54 Ill. 19; s. c. 5 Am. Rep. 71; New Orleans &c. R. Co. v. Stratham, 42 Miss. 607; s. c. 97 Am. Dec. 478 (holding that the age or decrepitude of a passenger should not be allowed to determine the length of time necessary to hold a train at a station, until timely notice of his situation is given to the conductor).

613 Southern R. Co. v. Mitchell, 98 Tenn. 27; s. c. 40 S. W. Rep. 72. It is, for example, under the duty of stopping the train at a station a sufficient length of time to allow a "fleshy" woman, carrying a valise and parcels, to alight, where the trainmen know that she intends to alight: Pierce v. Gray, 63 Ill. App.

158. A woman in an advanced stage of pregnancy, accompanied by two children, five and two years old respectively, and carrying several bundles, was a passenger on a railway train. On arriving at her destination, which was a regular stopping place, the train did not stop, but merely slackened its speed. She was directed by the conductor to "get off," and, upon asking how, he told her to "jump." She did jump with the youngest child in her arms and was injured. It was held that the railway company was guilty of negligence, and that she was not guilty of contributory negligence, and was entitled to recover damages: Baltimore &c. R. Co. v. Leapley, 65 Md. 571; s. c. 4 Cent. Rep. 253.

614 Baltimore &c. R. Co. v. Slanker, 77 Ill. App. 567; s. c. aff'd 180 Ill. 357; 54 N. E. Rep. 309.

firmities, etc., to alight in safety.615 In the absence of a statute prescribing the length of time which it shall hold its train at a particular station, the law does not attempt to prescribe any length of time during which it is required to stop for the purpose of discharging and receiving passengers, but limits itself to prescribing that it shall stop for such reasonable time as will permit the passengers who desire to alight, to leave the train in safety, and intending passengers to board the train in safety.616 The railroad company is not bound to keep its trains waiting until all the passengers alighting at the particular station have time to leave the station platform; but it discharges its duty to them if it allows them a reasonably sufficient time to get off the train and out of the way of the cars in safety.617

§ 2867. Instructions to Juries with Reference to this Duty.It has been held that an instruction that it is the duty of those in charge of a passenger train to stop at stations sufficiently long to give the passengers a reasonable opportunity to alight in safety, and that a failure to do so is negligence, is not objectionable as a charge that particular facts in evidence would constitute negligence.618

615 Keller v. Sioux City &c. R. Co., 27 Minn. 178; Griswold v. Chicago &c. R. Co., 64 Wis. 652; Raben v. Central &c. R. Co., 73 Iowa 579; Hurt v. St. Louis &c. R. Co., 94 Mo. 255; Culberson v. Chicago &c. R. Co., 50 Mo. App. 556; Nunn v. Georgia R. Co., 71 Ga. 710; New Orleans &c. R. Co. v. Stratham, 42 Miss. 607; Swigert v. Hannibal &c. R. Co., 75 Mo. 475; Carr v. Eel River &c. R. Co., 98 Cal. 366; s. c. 21 L. R. A. 354; Falls v. San Francisco &c. R. Co., 97 Cal. 114.

616 Louisville &c. R. Co. v. Espenscheid, 17 Ind. App. 558; s. c. 47 N. E. Rep. 186.

617 Louisville &c. R. Co. v. Ricketts, 18 Ky. L. Rep. 687; s. c. 37 S. W. Rep. 952 (not to be rep.); Hurt v. St. Louis &c. R. Co., 94 Mo. 255; Raben v. Central Iowa R. Co., 73 Iowa 579; Gulf &c. R. Co. v. Williams, 70 Tex. 159; Pennsylvania Co. v. Lyons, 129 Pa. St. 113; Murphy v. Rome &c. R. Co., 56 Hun (N. Y.) 645; s. c. 32 N. Y. St. Rep. 381; McDonald v. Long Island R. Co., 116 N. Y. 546; Louisville &c. R. Co. v. Costello, 9 Ind. App. 462; Conway v. New Orleans &c. R. Co., 46 La. An. 1429 (ample time to leave with safety); Ridenhour v. Kansas City Cable St. R. Co., 102 Mo. 270, 283.

Street cars should stop a sufficient time to allow passengers, with the exercise of reasonable diligence, to alight: Augusta &c. R. Co. v. Randall, 79 Ga. 304; Birmingham &c. R. Co. v. Smith, 90 Ala. 60; Washington &c. R. Co. v. Harmon, 147 U. S. 571; s. c. 37 L. ed. 284 (must give him time to alight in safety); Metropolitan R. Co. v. Jones, 1 App. (D. C.) 200; Anderson v. Citizens' St. R. Co., 12 Ind. App. 194 ("stopping a reasonable time is not sufficient, but it is the duty of the conductor or those in charge to see and know that no passenger is in the act of alighting, or in a dangerous position, before starting the car"). See, also, note to Highland Ave. &c. R. Co. v. Burt, 92 Ala. 291; s. c. 13 L. R. A. 95.

618 Houston &c. R. Co. v. Hubbard (Tex. Civ. App.), 37 S. W. Rep. 25 (no off. rep.). Nor was such an instruction deemed prejudicial to the defendant in not limiting the time to a "reasonable" length of time, where the defendant claimed that the train had not stopped when the injury occurred: Smitson v. Southern &c. Co., 37 Or. 74; s. c. 60 Pac. Rep. 907. Circumstances under which, in an action for injuries sustained while alighting from a mov

§ 2868. Statutes Prescribing the Length of Time Trains are to Stop at Stations.-The wisdom of Texas in dealing with the subject of railroads has illustrated itself in the following statute: "From and after the establishment of any wayside station or stations by any railroad company in this State, it shall be the duty of the conductor or other person in charge of any train of passenger cars upon such railroad,619 to stop his train at each and every such station not less than five minutes; and any such conductor, or other person in charge of such passenger train, who shall, upon any occasion, pass any such station without stopping his train as aforesaid, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall, for each and every offense, be punished by a fine of not less than fifty dollars and not more than one hundred dollars, or by imprisonment in the county jail for a term not exceeding thirty days, and may be proceeded against for such offense by information or indictment in any county through which the road passes."620 It will be perceived that the terms of this statute render the running of fast express or mail trains impossible. If a train of cars is obliged to stop five minutes at every way station, whether the condition of traffic requires it or not, the aggregate speed made by railway passenger trains in Texas must be slow indeed. As a police regulation, such a statute is in a high degree unreasonable, and is more injurious to the people of the State upon whose statute book it is found than it can be to the railroad companies themselves; because, if literally carried out, it will so impede rapid transit as to turn the railroads of Texas into old-fashioned stagecoaches. Nevertheless, it was held constitutional.621 It is clear of doubt, however, that, in its application to interstate passenger trains, it is unconstitutional, as being an attempt on the part of the State not only to regulate that species of interstate commerce, but to regulate it in a most absurd and injurious manner.622 It does not follow,

ing train at a station, it was error to instruct the jury that the failure of defendant to stop the train was such negligence as entitled the plaintiff to recover, and that contributory negligence of plaintiff would not bar a recovery, but would go in mitigation of damages merely: Louisville &c. R. Co. v. Collier, 104 Tenn. 189; s. c. 54 S. W. Rep. 980. In this case, the train negligently failed to stop at plaintiff's station, but was slowly 'running by it, when plaintiff jumped off and was injured. The court said, that the jury should have been instructed to ascertain whether, in view of the motion of the train, and other circumstances, plaintiff acted

prudently, and whether or not, if he was negligent, his negligence was the proximate cause of his injury; if it was, his action was barred; but if they found that he was negligent, but such negligence was not the proximate cause of his injury, it should be considered in mitigation of damages.

619 The italics are the author's.

620 Tex. Acts 1866, p. 93 (Pasc. Dig., art. 6532).

621 Davidson v. State, 4 Tex. App. 545; Galveston &c. R. Co. v. Le Gierse, 51 Tex. 189, 201.

622 Cleveland &c. R. Co. v. Illinois, 177 U. S. 514; Illinois &c. R. Co. v. Illinois, 163 U. S. 142.