SUBDIVISION 5. Carrying the Passenger beyond his Proper Station. 2890. Carrying Passenger beyond his Station.718-If the passenger has purchased a ticket to a station at which the train which he has boarded regularly stops, then, under principles already considered,719 the company will be bound to stop the train at such station, and opposite the platform thereof,720 for a reasonable length of time to allow him to alight in safety; failing in which it will be liable to him in any damages sustained, without fault of his own, which can be regarded as the proximate result of its negligence or default in this particular.721 track upon alighting from another train, evidence that the conductor of the latter train placed a stool on that side of the train alleged to be the wrong side to assist passengers in alighting is admissible, although such passengers did not use it, where there is evidence that he alighted on that side: Lustig v. New York &c. R. Co., 65 Hun (N. Y.) 547; s. c. 48 N. Y. St. Rep. 916; 20 N. Y. Supp. 477. Rep. 637; 41 Am. & Eng. Rail. Cas. 105; Galveston &c. R. Co. v. Crispi, 73 Tex. 236; s. c. 11 S. W. Rep. 187; Jeffersonville &c. R. Co. v. Hendricks' Administrator, 26 Ind. 228; Morrison v. Erie R. Co., 56 N. Y. 302; Damont v. New Orleans &c. R. Co., 9 La. An. 441; Dougherty v. Chicago &c. R. Co., 86 Ill. 467; Adams v. Lancashire R. Co., L. R. 4 C. P. 739; Gee v. Metropolitan R. Co., L. R. 8 Q. B. 161, 173; Robson v. North 718 This section is cited in §§ 2560, eastern R. Co., L. R. 10 Q. B. 271; 3017. 719 Ante, § 2554. Cable v. Southern R. Co.. 122 N. St. Louis &c. R. Co. v. Cantrell, Thompson v. New Orleans &c. R. 37 Ark. 519. 721 Texas &c. R. Co. v. Mansell (Tex. Civ. App.), 23 S. W. Rep. 549 (no off. rep.); Fordyce v. Dillingham (Tex. Civ. App.), 23 S. W. Rep. 550; Adams v. Missouri &c. R. Co., 100 Mo. 570; s. c. 13 S. W. Rep. 509; reversing s. c. 100 Mo. 555; 12 S. W. Co., 50 Miss. 315; s. c. 19 Am. Rep. 12; Caldwell v. Richmond &c. R. Co., 89 Ga. 550; Strange v. Missouri &c. R. Co., 61 Mo. App. 586; Houston &c. R. Co. v. Smith (Tex. Civ. App.), 32 S. W. Rep. 710 (no off. rep.); Louisville &c. R. Co. v. Dancy, 97 Ala. 338; Franklin v. Southern Cal able negligence could not be predicated upon the fact that it struck a passenger who was in the act of getting off on the wrong side of the car.15 Negligence has been, on the clearest grounds, predicated upon the act of a conductor of a freight train, in turning away from passengers whom he sees about to board the train, among whom are several small children, and deliberately ordering a brakeman to signal the engineer to back the train without warning to such passengers, and without any signal but a slight wave of the brakeman's hand.716 On grounds equally clear, it has been held that the failure to stop a train and remove from the track one who has stepped or fallen from the train while it is going at high speed, and is helpless upon the track, where this could be done without danger or any considerable inconvenience, or to notify those in charge of another train of his exposed condition, which could be done by telegram before the other train has left the nearest station,-will render such railroad company liable for the death of such person, where he is killed by the following train, although those in charge of it are not personally guilty of negligence.717 715 Golberg v. New York &c. R. Co., 71 Hun (N. Y.) 613; s. c. 54 N. Y. St. Rep. 90; 24 N. Y. Supp. 1143; following Golberg v. New York &c. R. Co., 133 N. Y. 561; s. c. 30 N. E. Rep. 597, on substantially the above facts; reversing s. c. 15 N. Y. Supp. 571. 716 Norfolk &c. R. Co. v. Groseclose, 88 Va. 267; s. c. 15 Va. L. J. 645; 13 S. E. Rep. 454. 717 Cincinnati &c. R. Co. v. Kassen, 49 Ohio St. 230; s. c. 16 L. R. A. 674; 27 Ohio L. J. 383; 12 Rail. & Corp. L. J. 78; 31 N. E. Rep. 282. On the other hand, where a passenger train was stopped during the nighttime by a snowdrift, and some of the passengers, becoming alarmed at the approach of a snowplow, thinking that it was approaching on the main track, and their alarm being increased by the sounding of the whistle on the locomotive of their own train, left the car on which they were, and, while crossing the adjoining track, were injured by the snowplow,-it was held that the railway company was not liable: Chicago &c. R. Co. v. Felton, 125 Ill. 458; s. c. 17 N. E. Rep. 765. An old woman, while crossing the defendant's railway track to take a train in the daytime, was struck by another train. There was an unobstructed view of the track in the direction from whence the latter train came for 2,200 feet. Plaintiff testified that she was told to cross the tracks by defendant's agents, and that when starting across she looked up and down the track, but did not stop, and did not see or hear the train, nor hear a whistle; that she was sixty-seven years of age, and had good sight and hearing. She was struck when she had one foot on the track. It was held that plaintiff was guilty of contributory negligence, and the fact that the baggage-master at the station told her to cross the track did not justify her in assuming that she could cross in safety: Roberts v. New York &c. R. Co., 175 Mass. 296; s. c. 56 N. E. Rep. 559. A passenger on a railway train who, instead of waiting a few minutes after alighting to permit a freight train which obstructed his passage to the depot building to be removed, walked along the track to a highway several rods from the building, and fell through a cattle gap with the location of which he was acquainted, was guilty of such contributory negligence as prevented a recovery of damages: St. Louis &c. R. Co. v. Cox, 60 Ark. 106; s. c. 29 S. W. Rep. 38. In an action for the death of a passenger from being struck by a train while crossing the SUBDIVISION 5. Carrying the Passenger beyond his Proper Station. 719 § 2890. Carrying Passenger beyond his Station.718-If the passenger has purchased a ticket to a station at which the train which he has boarded regularly stops, then, under principles already considered," the company will be bound to stop the train at such station, and opposite the platform thereof,720 for a reasonable length of time to allow him to alight in safety; failing in which it will be liable to him in any damages sustained, without fault of his own, which can be regarded as the proximate result of its negligence or default in this particular.7 721 track upon alighting from another train, evidence that the conductor of the latter train placed a stool on that side of the train alleged to be the wrong side to assist passengers in alighting is admissible, although such passengers did not use it, where there is evidence that he alighted on that side: Lustig v. New York &c. R. Co., 65 Hun (N. Y.) 547; s. c. 48 N. Y. St. Rep. 916; 20 N. Y. Supp. 477. Rep. 637; 41 Am. & Eng. Rail. Cas. 105; Galveston &c. R. Co. v. Crispi, 73 Tex. 236; s. c. 11 S. W. Rep. 187; Jeffersonville &c. R. Co. V. Hendricks' Administrator, 26 Ind. 228; Morrison v. Erie R. Co., 56 N. Y. 302; Damont v. New Orleans &c. R. Co., 9 La. An. 441; Dougherty v. Chicago &c. R. Co., 86 Ill. 467; Adams v. Lancashire R. Co., L. R. 4 C. P. 739; Gee v. Metropolitan R. Co., L. R. 8 Q. B. 161, 173; Robson v. North 718 This section is cited in §§ 2560, eastern R. Co., L. R. 10 Q. B. 271; 3017. 719 Ante, § 2554. Cable v. Southern R. Co., 122 N. 20 St. Louis &c. R. Co. v. Cantrell, Thompson v. New Orleans &c. R. 37 Ark. 519. 721 Texas &c. R. Co. v. Mansell (Tex. Civ. App.), 23 S. W. Rep. 549 (no off. rep.); Fordyce v. Dillingham (Tex. Civ. App.), 23 S. W. Rep. 550; Adams v. Missouri &c. R. Co., 100 Mo. 570; s. c. 13 S. W. Rep. 509; reversing s. c. 100 Mo. 555; 12 S. W. Co., 50 Miss. 315; s. c. 19 Am. Rep. 12; Caldwell v. Richmond &c. R. Co., 89 Ga. 550; Strange v. Missouri &c. R. Co., 61 Mo. App. 586; Houston &c. R. Co. v. Smith (Tex. Civ. App.), 32 S. W. Rep. 710 (no off. rep.); Louisville &c. R. Co. v. Dancy, 97 Ala. 338; Franklin v. Southern Cal 355 722 § 2891. Further of Carrying Passenger beyond Station.-It is said that the law imposes the strictest care and caution upon a railway company in stopping its train at the station to which it had agreed to carry a passenger.' As the duty of stopping the train at the proper place, so as to enable him to alight and leave the grounds of the carrier in safety, is intimately connected with the safety of the passenger, this is probably a correct statement of law. But the servants of the carrier can not always be able, even with the exercise of the strictest care and caution, to bring the train to a standstill at the proper place opposite the station platform. The track may be wet and slippery, or covered with snow; the train may be excessively loaded, so as to have a greater momentum than in ordinary cases; something unforeseen by the strictest care may interfere with the proper working of the brakes. It can not therefore be affirmed that the mere fact that a railroad passenger train runs a little beyond the station platform before being brought to a standstill is negligence per se; nor that negligence as matter of law can be predicated upon the delay of the train at the place where it is finally brought to a stop for a length of time necessary to reverse its motion, so as to take it to the usual stopping place; but in such a case the question of negligence is for the jury.723 As the contributory negligence of the passenger is so often the real cause of his being carried beyond his station, the fact that a passenger is carried beyond his station does not, of itself, create a presumption of negligence against the carrier; but the burden of proof is on the passenger to show that a ifornia Motor Road, 85 Cal. 63; International &c. R. Co. v. Terry, 62 Tex. 380; s. c. 50 Am. Rep. 529; Alabama &c. R. Co. v. Sellers, 93 Ala. 9; Trigg v. St. Louis &c. R. Co., 74 Mo. 147; s. c. 41 Am. Rep. 305; East Tennessee &c. R. Co. v. Lockhart, 79 Ala. 315; Pennsylvania R. Co. v. Aspell, 23 Pa. St. 147; Warden v. Missouri &c. R. Co., 35 Mo. App. 631; Foss v. Boston &c. R. Co., 66 N. H. 256; s. c. 11 L. R. A. 267; Samuels v. Richmond &c. R. Co., 35 S. C. 493; White Water R. Co. v. Butler, 112 Ind. 598; Deming v. Chicago &c. R. Co., 80 Mo. App. 152; s. c. 2 Mo. App. Rep. 547 (stopping at a dangerous place); East Tennessee &c. R. Co. v. Lockhart, 79 Ala. 315 (carrying passenger beyond destination); Minor v. Lehigh Valley R. Co., 21 App. Div. (N. Y.) 307; s. c. 47 N. Y. Supp. 307 (under a statute). 722 Straus v. Kansas City &c. R. Co., 75 Mo. 185; s. c. 5 West. Rep. 433. 723 Taber v. Delaware &c. R. Co., 71 N. Y. 489. When, therefore, the night was dark; the plaintiff, a female passenger, was unacquainted with the place; the station had been announced by a brakeman, and the train ran some little distance beyond the platform before it was brought to a stop; and the plaintiff. supposing that it had drawn up by the side of the platform, tried to alight, and was injured by the reversal of the engine to move the train back to the platform.-it was held that she was not imputable in law with contributory negligence for attempting to alight under the circumstances, but the question was for the jury; and she recovered damages: Taber v. Delaware &c. R. Co., 71 N. Y. 489. reasonable opportunity to alight was not given him.724 If the passenger knows that the train has stopped at the station of her destina-, tion, and if she has been afforded a reasonable time in which to alight, she can not make the failure of an employé to give her special notice that the station was reached, a ground of recovering damages from the company for carrying her beyond it, although he had promised to give her such notice.725 It may be observed in conclusion that while a passenger has no right to insist upon being put off at a station which is not a regular stopping place or station for the train on which he takes passage, yet a contract to put him off there may be implied from the custom of stopping to receive and discharge passengers at such place.726 § 2892. Carrying Passenger beyond Destination Viewed as a Breach of Contract or as a Tort.-The wrong of carrying a passenger beyond the station to which he has purchased his ticket may be viewed in two aspects: 1. As a breach of the contract between the passenger and the carrier; 2. As a mere tort in case the passenger is carried beyond the station platform or other proper place for alighting, and is discharged from the train of the carrier in a dangerous place, as, for example, in a railway yard, or over a dangerous trestle, or in the open country, and especially where the passenger is unfamiliar with the place, and the night is dark, so that he can not see his way out of danger. This species of wrong has been already considered.27 The wrong done to the passenger in carrying him beyond the station for which his ticket calls may, it is believed, be treated either as a breach of contract, or as a pure tort; for if, when the proper station of the passenger is reached, the carrier does not afford him a reasonable opportunity to alight, but carries him on against his will, or contrary to his intent and purpose, the act is in the nature of a trespass upon his person, not really differing from an unlawful arrest and imprisonment, though of a temporary nature. It is in fact a species of kidnapping, though done without intent to impose an unlawful restraint upon him. Whether this species of wrong is viewed as a mere breach of contract, or as a violation of the public duty of the carrier, and hence as a tort, judicial opinion can not and does not hesitate upon. 124 Hewes v. Philadelphia &c. R. Co., 76 Md. 154; s. c. 24 Atl. Rep. 325. 723 Missouri &c. R. Co. v. Miles, 20 Tex. Civ. App. 570; s. c. 50 S. W. Rep. 168. It is contributory negligence for a passenger not to understand the name of the station, where she wishes to change cars, when it is told her by the conductor, and not to discover its name until she has passed it: St. Louis &c. R. Co. v. McCullough, 18 Tex. Civ. App. 534; s. c. 33 S. W. Rep. 285. 726 Hull v. East Line &c. R. Co., 66 Tex. 619; Louisville &c. R. Co. v. Johnston, 79 Ala. 436. 727 Ante, § 2558, et seq. |