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§ 2945. Leaving Seat and Going to a More Dangerous Place.If a passenger voluntarily leaves his seat on the train and goes to a place where he incurs a greater risk of injury from violence in the movement of the car, he is under the duty of using, to the end of obviating danger of injury from that source, such care as a prudent person would use under the circumstances, and his failure to use such care will impute contributory negligence to him, preventing a recovery of damages in case he is injured.127 This is merely an application of the principle that reasonable or ordinary care is a care proportionate to the danger to be avoided.128 It is not to be inferred from this that a passenger incurs the imputation of contributory negligence from quitting his seat in the coach under any circumstances, as where he goes to the platform of the car when the train is at a halt at a regular station, to speak to a near relative;129 or to meet a friend and bring her into the car;130 and, while doing so, receives an injury from the sudden and violent starting of the train.

§ 2946. Leaving the Train While it is at a Halt and Incurring Danger. Where a train was stopped and detained by a wreck and the passengers alighted out of curiosity to observe the wreck, and in it there were several tanks of naphtha, one of which was on fire, and while one of the passengers was looking at it, it exploded, seriously injuring him, it was held, and with obvious propriety, that he could not recover damages from the company, by reason of the fact that he had by his own act, assumed the risk of injury from the source from which the injury to him proceeded.131 Another reason, equally good, might have been given for the decision. The passenger was not on any portion of the premises of the carrier intended for the use of its passengers, in waiting for trains or in going to or coming from them. He was out in the open country, acting according to his own volition, and under such circumstances the relation of carrier and passenger might well be deemed to have been temporarily suspended.132 The carrier was certainly charged with no duty toward him, unless to warn him of any special danger to him, known to the carrier, and not apparently known to him; and this it seems the servants of the carrier did in the particular case.

127 Burr v. Pennsylvania R. Co., 64 N. J. L. 30; s. c. 44 Atl. Rep. 845. 128 Vol. I, § 25.

129 McCurrie v. Southern &c. Co., 122 Cal. 558; s. c. 5 Am. Neg. Rep. 117; 12 Am. & Eng. Rail. Cas. (N. S.) 170; 55 Pac. Rep. 324.

130 Southern R. Co. v. Smith, 95 Va. 187; s. c. 28 S. E. Rep. 173.

131 Chicago &c. R. Co. v. Myers, 80 Fed. Rep. 361; s. c. 25 C. C. A. 486; 49 U. S. App. 279.

132 Ante, § 2660.

§ 2947. Riding on Platform or Steps of Steam Railway Car.133_ The general rule is that if a passenger elects to ride upon the platform of a steam railway car, without any necessity, real or apparent, for taking that position, and, while so riding, is injured under such circumstances that he would not have been injured if he had not taken that position,-he can not recover damages from the company. In other words, for a passenger to ride in a position of such obvious. danger, without any real or apparent necessity for so doing, is generally regarded as negligence per se;134 and this conclusion of contributory negligence is more clear where the passenger takes this exposed position in violation of a known regulation of the carrier ;135 or in opposition to the command of a statute,136 or contrary to the

133 This section is cited in § 2962. 124 Graville v. Manhattan &c. R. Co., 105 N. Y. 525; s. c. 12 N. E. Rep. 51; Smotherman v. St. Louis &c. R. Co., 29 Mo. App. 265; Herdman v. New York &c. R. Co., 62 Hun (N. Y.) 621 (mem.); s. c. 42 N. Y. St. Rep. 293; 17 N. Y. Supp. 198; Torrey v. Boston &c. R. Co., 147 Mass. 412; s. c. 7 N. Eng. Rep. 148; 18 N. E. Rep. 213; Goodwin v. Boston &c. R. Co., 84 Me. 203; s. c. 24 Atl. Rep. 861; Alabama &c. R. Co. v. Hawk, 72 Ala. 112; Worthington v. Central &c. R. Co., 64 Vt. 107; s. c. 15 L. R. A. 326; 23 Atl. Rep. 590; Memphis &c. R. Co. v. Salinger, 46 Ark. 528; Lehigh Valley R. Co. v. Greiner, 113 Pa. St. 600; s. c. 4 Cent. Rep. 898; Fisher v. West Virginia &c. R. Co., 42 W. Va. 183; s. c. 33 L. R. A. 69; 4 Am. & Eng. Rail. Cas. (N. S.) 86; 24 S. E. Rep. 570; Jammison v. Chesapeake &c. R. Co., 92 Va. 327; s. c. 23 S. E. Rep. 758; Cleveland &c. R. Co. v. Moneyhun, 146 Ind. 147; s. c. 34 L. R. A. 141; 43 N. E. Rep. 1106; 5 Am. & Eng. Rail. Cas. (N. S.) 682; Sanders v. Chicago &c. R. Co. (Ok.), 61 Pac. Rep. 1075; Powers v. Chicago &c. R. Co., 57 Minn. 332; s. c. 59 N. W. Rep. 307 (bright, intelligent boy of thirteen); Cincinnati &c. R. Co. v. McLain. 148 Ind. 188; s. c. 44 N. E. Rep. 306. The Supreme Court of New York held that a passenger on an elevated train, which was so crowded that he could just find standing room upon it, not allowing room to shut the gates, and who, after getting off, voluntarily got upon the platform again, instead of waiting for the next train, there

by took upon himself the risk of any accident caused by the inability of the gateman to shut the gate: Graham v. Manhattan R. Co., 8 Misc. (N. Y.) 305; s. c. 59 N. Y. St. Rep. 279; 28 N. Y. Supp. 739. But, taking a different view of the facts, the Court of Appeals reversed this decision. It seems there was a movement of the crowd on the platform of the car, caused by a quarrel between the crowd and an intoxicated passenger, and that the plaintiff, to save himself from being pushed off, grasped the railing suddenly, and that his arm was broken by the movement of the cars around a curve. The Court of Appeals held that, even though a passenger who rides upon the platform of a crowded elevated railroad car assumes the ordinary risks of his position, yet he has a right to assume that the servants of the company will cause no unusual disturbance of the crowd, and that the cars are so constructed as not to render his position dangerous from their proximity to each other, in passing over any portion of the road, or, at least, that if such danger exists, he will be apprised of it: Graham v. Manhattan R. Co., 149 N. Y. 346.

135 Malcom v. Richmond &c. R. Co., 106 N. C. 63; s. c. 7 Rail. & Corp. L. J. 434; 11 S. E. Rep. 187; Louisville &c. R. Co. v. Bisch, 120 Ind. 549; s. c. 41 Am. & Eng. Rail. Cas. 89; 22 N. E. Rep. 662; McCauley v. Tennessee Co., 93 Ala. 356; s. c. 9 South. Rep. 611; Alabama &c. R. Co. v. Hawk, 72 Ala. 112.

138 A carrier is not exempted from

request of the conductor,137 even though there was no more than standing room inside. 138

§ 2948. Further of Riding on such Platform or Steps.-The passenger is not excused in taking such a dangerous position by the mere fact that he can not get a seat inside the car, provided there is standing room inside,139 although his position when so standing would be one of discomfort;140 nor, when the train is running at a speed of twenty-five miles an hour, because the passenger, a boy fifteen years old, goes out upon the lower step of the platform of the car, in order to vomit, there being plenty of standing room for the purpose of vomiting in the car.141 Nor does the fact that a passenger upon

damages for injuries received while riding on the platform of a car, under N. Y. Laws 1890, ch. 565, § 53, providing for the posting of regulations forbidding passengers from riding on the platform, unless there is at the time sufficient room for the proper accommodation of the passenger inside of the car: Morris v. Eighth Ave. R. Co., 68 Hun (N.. Y.) 39; s. c. 52 N. Y. St. Rep. 61; 22 N. Y. Supp. 666.

137 Fisher v. West Virginia &c. R. Co., 42 W. Va. 183; s. c. 33 L. R. A. 69; 4 Am. & Eng. Rail. Cas. (N. S.) 86; 24 S. E. Rep. 570.

138 Graville v. Manhattan R. Co., 105 N. Y. 525.

139 Goodwin v. Boston &c. R. Co., 84 Me. 203; s. c. 24 Atl. Rep. 861; Graville v. Manhattan R. Co., 105 N. Y. 525; Cleveland &c. R. Co. v. Moneyhun, 146 Ind. 147; s. c. 34 L. R. A. 141; 44 N. E. Rep. 1106; 5 Am. & Eng. Rail. Cas. (N. S.) 682; Lehigh Valley R. Co. v. Greiner, 113 Pa. St. 600; s. c. 4 Cent. Rep. 898.

140 Worthington V. Central Vermont R. Co., 64 Vt. 107; s. c. 15 L. R. A. 326; 45 Alb. L. J. 299; 23 Atl. Rep. 590; Camden &c. R. Co. v. Hoosey, 99 Pa. St. 492. post. § 2949.

But see

141 Cleveland &c. R. Co. v. Moneyhun, 146 Ind. 147; s. c. 34 L. R. A. 141; 44 N. E. Rep. 1106. It seems that he could have stood in the car and vomited in the aisle or upon other passengers. It perhaps was contributory negligence in him to be under the necessity of vomiting at all. Two passengers left their seats and stood on the platform of the car, smoking, although warned

of the danger of doing so. The train broke through a trestle, and these two men and a man in the baggage car were alone injured, out of a hundred passengers. It was held that these two could not recover damages from the company: Memphis &c. R. Co. v. Salinger, 46 Ark. 528. While there may be circumstances which will excuse the act of the passenger in standing upon the platform or step of a railway passenger coach, yet it has been well held that when the train is running at thirty miles an hour around curves, and is swaying and jolting, he can not recover damages for an injury to which his act of taking such an exposed position contributed: Worthington v. Central &c. R. Co., 64 Vt. 107; s. c. 15 L. R. A. 326; 45 Alb. L. J. 299; 23 Atl. Rep. 590. Contributory negligence has been ascribed to the act of a passenger in going upon the lower step of the platform of the car at night. while the train is running over switches at a speed of twelve to fourteen miles an hour, precluding recovery for injuries from being thrown from the car by the sudden increase of speed after the switches have been passed, where he is aware of the danger, although he has been told by the conductor that if he wishes to alight at the place where the track crosses another road, a short distance from the switches, he should go out upon the platform before the switches are reached and be ready to get off the moment the train stops: Cincinnati &c. R. Co. v. McLain, 148 Ind. 188; s. c. 44 N. E. Rep. 306. It has been held that

the platform of a railroad car at the time the train started, was looking for some one by whom to send a message to his family, excuse his contributory negligence in case he is injured. 142 If, while riding in this improper and dangerous position, the passenger is thrown off the train and injured, he can not recover damages, although the accident may have been in part due to the negligent manner in which the train was run.143 Nor will this conclusion be altered by the fact that the company may not, at the time, have a brakeman upon the platform to warn, assist or protect the passenger, although its rules require a brakeman to be there.144

§ 2949. What will Excuse the Passenger in so Riding.145-A real or apparent necessity will excuse the passenger in so riding, and repel the imputation of contributory negligence; so that if, while so riding, he is injured through the negligence of the carrier, he may recover damages. The real necessity for riding in such a position is generally held to exist where the cars are so crowded that the passenger can not procure standing room in them.146 Other courts go further,

a female passenger is guilty of contributory negligence, precluding recovery for injuries from being thrown from a train by reason of the sudden acceleration of speed, in going upon the platform, with bundles under each arm, for the purpose of passing into another car to ask the conductor to stop the train, which had just passed her station without stopping: Jammison v. Chesapeake &c. R. Co., 92 Va. 327; s. c. 23 S. E. Rep. 758. But this seems rather hard.

14 Torrey v. Boston &c. R. Co., 147 Mass. 412; s. c. 7 N. Eng. Rep. 148; 18 N. E. Rep. 213.

143 In nearly all the preceding cases the passenger was injured or killed by being thrown from the platform.

144 Herdman v. New York &c. R. Co., 62 Hun (N. Y.) 621 (mem.); s. c. 42 N. Y. St. Rep. 293; 17 N. Y. Supp. 198. It has been held that a railroad company is not liable for injuries to a female passenger whose arm was run over while endeavoring to rescue her child from beneath the car under which it was thrown by the concussion of freight cars, which were being attached to the train while the child was upon the platform, the car remaining stationary at the station, where the conductor had told passengers to keep their seats, although he had not specially

warned them not to come upon the platform, or given notice that the cars were about to be coupled, the concussion not being greater than usual: De Mahy v. Morgan &c. R. & S. S. Co.. 45 La. An. 1329; S. C. 14 South. Rep. 61. It has been held that a person is not justified in riding on the steps of a passenger car outside of the vestibule door, even though he has a ticket for a passage on that particular train, and is unable to secure admission to the coach, the door being locked; and if he voluntarily assumes such a risk, and is incidentally thrown from the train while it is running, he is not entitled to damages: Sanders v. Chicago &c. R. Co. (Ok.), 61 Pac. Rep. 1075. It seems that he must go inside the vestibule door, although it is locked in his face. It has been held, but with doubtful propriety, that a passenger upon the platform between the cars of a moving vestibuled train is guilty of contributory negligence in stepping back, without looking, into the open space between the platforms in order to enable a lady to enter the car before him: Louisville &c. R. Co. v. Stout, 66 Ill. App. 298; s. c. 1 Chic. L. J. Wkly. 580.

145 This section is cited in § 2948. 146 Lynn v. Southern &c. Co., 103 Cal. 7; s. c. 24 L. R. A. 710; 36 Pac.

and hold that it is not negligence per se for a passenger on a steam railway train to ride on the platform of a car, where the car is so crowded that he can not find a seat therein,1-especially where, in addition to the inability of the passenger to find a seat in the car, the platform is the most comfortable and convenient place which he can occupy.148 It is reasoned that mere standing space on the inside. of a car is not ordinarily such proper accommodation for a passenger as will make it negligence for him to stand on the car platform.1+9 Another turn to the reasoning of a court of this State is found in the proposition that the rule of a railroad company that passengers must not stand on the platforms is waived by receiving passengers for whom it fails to provide suitable accommodations inside its coaches.150 But it must be kept in mind that the railroad company is not, under all circumstances, chargeable with negligence because of its inability to accommodate an unusual and unexpected crowd of passengers; so that if, for this reason, a passenger is obliged to ride on the steps of the platform of a car, and is thrown therefrom by a jerk of the train, the railroad company will not be liable for his death or injury, on the footing of having failed to furnish sufficient cars to seat all the passengers.151

§ 2950. Further of such Excuses or Circumstances of Justification. And so, a necessity which will excuse the passenger for riding

Rep. 1018; Trumbull v. Erickson, 97 Fed. Rep. 891. Vomiting, it seems, is not a real or apparent necessity, so that if a boy who is a passenger on a train goes out upon the platform steps to vomit, while the train is in rapid motion, and is thrown off and hurt, there can be no recovery of damages: Cleveland &c. R. Co. v. Moneyhun, 146 Ind. 147; s. c. 34 L. R. A. 141; 44 N. E. Rep. 1106. So, if a passenger thrusts his head out of the window to vomit, and gets it knocked off or scraped in a tunnel, his injury will be ascribed to his own rashness and folly, and not to the negligence of the trainmen, they having no knowledge of what he is doing: Shelton v. Louisville &c. R. Co., 19 Ky. L. Rep. 215; s. c. 39 S. W. Rep. 842 (no off. rep.).

147 Werle v. Long Island &c. R. Co., 98 N. Y. 650.

148 Graham v. McNeill, 20 Wash. 466; s. c. 55 Pac. Rep. 631; 43 L. R. A. 300; 5 Am. Neg. Rep. 484: 12 Am. & Eng. Rail. Cas. (N. S.) 149.

140 Graham v. McNeill, supra.
150 Graham v. McNeill, supra.

151 Chicago &c. R. Co. v. Carroll, 5 Ill. App. 201. The crowd of passengers on this occasion was produced by the fact that it was Decoration Day. The railroad company had made provisions for the accommodation of an excess of passengers on that day, basing their estimate upon their experience of the previ ous year. But double the number that were carried on the previous year came to take passage, and it was held, apparently with good reason, that the railroad company was not imputable with negligence be cause of its inability to carry such an excess of business. Besides, before the injury which was the occasion of the suit had taken place, many passengers had left the train, so that it became incumbent upon the plaintiff to see whether there was not room for him inside the car, instead of continuing to sit on the steps of the platform: Chicago &c. R. Co. v. Carroll, supra.

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