153

on the front platform exists where the rear platform is full and there appears to be no available room inside;152 especially where he is impliedly invited so to ride by the conductor and is accepted and treated as a passenger by the conductor while there.1 So, a passenger who proceeds from one car to another of a moving train, in order to find a seat, is deemed to act under a reasonable necessity; and if he is injured while upon the platform of one of the cars, in consequence of a collision between the train and another train, he is not precluded from recovering damages on the ground of contributory negligence.154

§ 2951. Further of this Subject.-An apparent necessity exists, under a principle already considered, where the passenger leaves his position inside the car and goes upon the platform under the impulse of sudden fear, produced by an impending peril brought about by the negligence of the carrier, for the purpose of escaping a seemingly imminent danger, where his act in so doing is such as a person of ordinary care and prudence might do under the circumstances.155 But in such a case, it is reasoned that the fact that the passenger is injured in such an attempt while others who remain in their seats escape uninjured, is a circumstance to be considered by the jury, in determining whether he acted with ordinary care under the circumstances.156 Contributory negligence was not imputed to the passenger as matter of law, where a passenger on an excursion train attempted to stand on the outside running-board of the car, without noticing that certain coal bins belonging to the railroad company were so near the track as not to afford room for the passage of his body while in that position, without being scraped off;157 nor where

152 Highland &c. R. Co. v. Donovan, 94 Ala. 299; s. c. 10 South. Rep. 139. 153 Highland &c. R. Co. v. Donovan, supra. Whether or not a passenger upon a railway train is guilty of negligence in standing upon the platform of the car, when he could stand inside, in the aisle, has been held a question for the jury: International &c. R. Co. v. Welsh (Tex. Civ. App.), 24 S. W. Rep. 854 (no off. rep.).

154 Dewire v. Boston &c. R. Co., 148 Mass. 343; s. c. 2 L. R. A. 166; 19 N. E. Rep. 523.

155 Mitchell v. Southern &c. R. Co., 87 Cal. 62; St. Louis &c. R. Co. v. Maddry, 57 Ark. 306; s. c. 21 S. W. Rep. 472. Compare Vol. I, §§ 80, 164, 175, 188, 195, 197, 255, 1272; Vol. II, § 2328; ante, § 2927.

156 Mitchell v. Southern &c. R. Co.,

87 Cal. 62. There is a holding, seemingly untenable, to the effect that a railroad company can not attribute negligence to a passenger in standing on the platform of its car, in an action for personal injuries received by him in being thrown therefrom by a sudden start, when its conductor saw him in that position and collected his fare without objection: Olivier v. Louisville &c. Co., 43 La. An. 804; s. c. 9 South. Rep. 431. But it would seem that the fact that the conductor collects fare from a passenger who is riding in such a dangerous position, without directing him to go inside, ought not to relieve the passenger from the imputation of contributory negligence. 157 Dickinson v. Port Huron &c. R. Co., 53 Mich. 43.

a passenger standing on the lower step of a railway car inadvertently projected his body beyond the line of the car, bringing it in contact with a car negligently left standing on a side track too near the main track, he having boarded the train but a few minutes before, and having been unable to get upon the platform because of the number of persons preceding him,-the question of his negligence being for the jury. 158

§ 2952. Doctrine that the Act of the Passenger in so Riding is not Negligence per se.-On the other hand, there is a numerous class of cases holding that the fact that a passenger rides on the platform of a passenger car, when the car is crowded, is not negligence per se, but merely presents a question of negligence for the consideration of the jury.159 Courts have refused to ascribe contributory negligence to the act of a passenger in standing upon the lower step of the platform of a railway car while in motion, where the train is running slowly through a city and making frequent stops;160 to a passenger riding on the platform of an elevated railroad car, where the gate is not kept closed in pursuance of the mandate of a statute,-this fact presenting evidence of negligence on the part of the company, but not necessarily negligence on the part of the passenger;181 to the

158 Lake Shore &c. R. Co. v. Kelsey, 76 Ill. App. 613. No such circumstance will, however, excuse the negligence of the company in leaving another car so near its passing train that a person thus riding, in consequence of the train being crowded with other passengers, is struck by such car. Such an action will present a question for the jury, on the subject of negligence and contributory negligence. It was so held with reference to a train operated for the accommodation of the workmen of the railway company, with a speed of seven miles an hour. In consequence of the platform of a car being crowded with other passengers, one of the passengers was obliged to take a position on the lowest step of the car, with his hands on the railing, his body projecting outside the line of the car, and his head facing inward toward the car. In this position he was struck by another car which the railroad company had negligently left near the track: Lake Shore &c. R. Co. v. Kelsey, 180 Ill. 530; s. c. 54 N. E. Rep. 608; aff'g s. c. 76 Ill. App. 613.

159 Lynn v. Southern &c. R. Co., 103 Cal. 7; s. c. 24 L. R. A. 710 (with note); East Omaha &c. R. Co. v. Godola, 50 Neb. 906; Chesapeake &c. R. Co. v. Lang, 100 Ky. 221; s. c. 19 Ky. L. Rep. 65; 38 S. W. Rep. 503; modified on rehearing 40 S. W. Rep. 451; petition for modification denied in 19 Ky. L. Rep. 67, 68; Chicago &c. R. Co. v. Fisher, 141 Ill 614; s. c. 31 N. E. Rep. 406; aff'g s. c. 38 Ill. App. 33; Ridenhour v. Kansas City &c. R. Co., 102 Mo. 270; s. c. 13 S. W. Rep. 889; San Antonio &c. R. Co. v. Choate, 22 Tex. Civ. App. 618; s. c. 56 S. W. Rep. 214; Graham v. Manhattan R. Co., 149 N. Y. 336; s. c. 43 N. E. Rep. 917; Lake Shore &c. R. Co. v. Kelsey, 76 Ill. App. 613; Choate v. Missouri &c. R. Co., 67 Mo. App. 105; Georgia &c. R. Co. v. Watkins, 97 Ga. 381; s. c. 24 S. E. Rep. 34.

160 Lake Shore &c. R. Co. v. Kelsey, 76 Ill. App. 613.

161 Graham v. Manhattan R. Co., 149 N. Y. 336; s. c. 43 N. E. Rep. 917. This was the case where the guard, in dealing with an intoxicated passenger, created a commotion among the passengers crowding the plat

act of a passenger in going upon the platform in order to pass from one car to another, who was thrown off the train by a sudden jerk of the car;162 to a passenger who took a position on the steps of the car when the train was slacking up to allow passengers to alight, when there was room inside the car;163 to an intending passenger who attempted to enter a car, but was stopped on the platform by a throng of passengers coming from the other side, and who yielded his place to ladies riding on the platform, and who did not, after a large number of passengers had left the train at an intermediate station, attempt to enter another car, but remained on the steps where he originally was, and was crowded off;164 to a passenger who chose to ride on the platform of the front car, in a crowded excursion train, so as to prevent a recovery for injuries caused by a collision with a freight train, due to leaving a switch open.165

form, of whom the plaintiff was one, so as to jostle him in such a manner as to lead him to seize the railing which extended around the platform, whereby his arm was caught between the railing of two cars and was injured; and it was held that, while he accepted the risks ordinarily incident to such a position on the car, he did not accept a risk incident to an unusual disturbance caused by a quarrel between the guard and an intoxicated passenger: Graham v. Manhattan R. Co., supra.

142 San Antonio R. Co. v. Choate, 22 Tex. Civ. App. 618; s. c. 56 S. W. Rep. 214. In this case an instruction to the effect that where a passenger goes from one car to another without notice to the trainmen, the company owes him no duty with respect to movements of the train while engaged in such act, was properly refused; since while the passenger assumed the risks incident to the undertaking of danger from ordinary sources, yet he did not assume the risk of danger from negligence, and the question of his contributory negligence and of the negligence of the defendant was a question for the jury: San Antonio &c. R. Co. v. Choate, supra.

162 Ridenhour v. Kansas City &c. R. Co., 102 Mo. 270; s. c. 13 S. W. Rep. 889. This fact did not absolve the company from liability; but the question whether the place was more dangerous than inside the car, and, if so, whether the passenger had at the time sufficient capacity and discretion to understand that it

was more dangerous, were questions of fact for the jury: Ridenhour v. Kansas City &c. R. Co., supra (child nine years old).

164 Chicago &c. R. Co. v. Fisher, 141 Ill. 614; s. c. 31 N. E. Rep. 406; aff'g s. c. 38 Ill. App. 33. Another court has held that it is not negligence as matter of law that a passenger should be or should remain on the platform of a car for a time, although there are seats inside, in the absence of a statute or regulation against it, but that his negligence is a question for a jury: Gerstle v. Union &c. R. Co., 23 Mo. App. 361.

165

Chesapeake &c. R. Co. v. Lang, 100 Ky. 221; s. c. 19 Ky. L. Rep. 65; 38 S. W. Rep. 503; modified on rehearing 40 S. W. Rep. 451; petition for modification denied 19 Ky. L. Rep. 67, 68. That the degree of care required of a boy fifteen years old, riding on the top of a platform of a crowded passenger car, is such as is reasonably to be expected from a boy of his age and capacity, see Georgia &c. R. Co. v. Watkins, 97 Ga. 381; s. c. 24 S. E. Rep. 34; Vol. I, § 308. In such a case an instruction to the effect that if the person who was jerked from the platform of a car and killed, was at the time of the injury exercising ordinary care and prudence, the plaintiff was entitled to recover,-was held to be erroneous. because it ignored the question of his care in venturing upon the prohibited place in the first instance: Chicago &c. R. Co. v. Colwell, 3 Ill. App. 545.

§ 2953. Going to the Platform Preparatory to Alighting before the Train Comes to a Stop.-For a passenger to go upon the platform of the car preparatory to alighting, after the name of the station has been announced, and while the car is slowing down, is not riding upon the platform within the meaning of a regulation of the carrier prohibiting passengers from so riding, but is merely using the platform as a means of egress; and he is not imputable with contributory negligence as matter of law in so doing, in case he is injured through the negligence of the company while in that position, but whether it is negligence under all the circumstances is a question of fact for the jury.' 166 But there is a limit to the rule which excuses this conduct on the part of the passenger. If the train is approaching the station at a dangerous rate of speed, and if he is not invited by any servant of the carrier thus to go upon the platform, and if there is no necessity for him so to act, he can not recover damages by reason of the fact of being jerked off the train by a sudden increase of its speed which it makes instead of stopping at the station.167

$2954. Riding on the Platform of a Street Car.-Judicial authority is generally united in favor of the proposition that the mere act of riding upon the platform of a crowded street car is not negligence per seles in the case of an adult passenger, or one reasonably compe

166 Watkins v. Birmingham R. &c. Co., 120 Ala. 147; s. c. 43 L. R. A. 297; 24 South. Rep. 392; Newton v. Central &c. R. Co., 80 Hun (N. Y.) 491; s. c. 62 N. Y. St. Rep. 387; 30 N. Y. Supp. 488 (passenger in this situation thrown down between the cars by a sudden jerk of the train); Schreiner v. New York &c. R. Co., 12 App. Div. (N. Y.) 551; s. c. 42 N. Y. Supp. 163 (boy ten and a half years old so acting, following the example of adult passengers, and thrown from the platform by the sudden stopping of the train); Cincinnati &c. R. Co. v. Revalee, 17 Ind. App. 657; s. c. 46 N. E. Rep. 352 (female passenger went upon platform when train had nearly stopped, and, in attempting to alight, was thrown upon the station platform by the sudden starting of the train without warning); Baltimore &c. R. Co. v. Meyers, 62 Fed. Rep. 367; s. c. 18 U. S. App. 569; 10 C. C. A. 485 (passenger taking this position for the

purpose of alighting, by invitation of the brakeman, is not riding upon the platform within the meaning of a prohibitory statute); Gulf &c. R. Co. v. Warlick (Ind. Terr. App.). 35 S. W. Rep. 235 (no off. rep.).

167 Scheiber v. Chicago &c. R. Co.. 61 Minn. 499; s. c. 63 N. W. Rep. 1034. See also Jonas v. Long Island R. Co., 20 Misc. (N. Y.) 176, where the passenger thus went out while the train was running at a high rate of speed, and was precluded from recovering damages on the ground of contributory negligence.

168 Upham v. Detroit City R. Co.. 85 Mich. 12; Taft v. Brooklyn &c. R. Co., 14 Misc. (N. Y.) 310; s. c. 35 N. Y. Supp. 1042; 70 N. Y. St. Rep. 750; Graham v. Manhattan R. Co., 149 N. Y. 336; s. c. 43 N. E. Rep. 917; Lax v. Forty-Second St. R. Co., 46 N. Y. Super. Ct. 448; Lake v. Cincinnati &c. R. Co., 13 Ohio C. C. 494.

169

.170 and

tent to take care of himself,' or even in the case of a woman; this is especially so in the absence of any published rules of the company forbidding passengers to ride in such a position.171 While there is obviously more danger in standing on the front than on the rear platform of such a car, yet several of the preceding cases make no distinction in this respect; and one of them holds that for a passenger to stand on the front platform of such a car, outside the gate, by the permission or direction of the driver, is not so obviously dangerous as to prevent a recovery in case the passenger is knocked off the step without his fault. 172 For stronger reasons, it is not negligence per se for a passenger upon a crowded street car to force himself from his seat into a crowd upon the platform while the car is in motion, for the purpose of alighting.178 So, a passenger on a train on an elevated railroad, who has been expressly invited by the guard to ride on a crowded car, is not, as matter of law, guilty of contributory negligence in returning to the platform after momentarily alighting to allow another passenger to get off. 174 Passengers who

169 Sandford v. Hestonville &c. R. Co., 136 Pa. St. 84; s. c. 20 Atl. Rep. 799; Reber v. Pittsburg &c. R. Co., 179 Pa. St. 339; Adams v. Washington &c. R. Co., 9 App. (D. C.) 26; Pendergast v. Union R. Co., 10 App. Div. (N. Y.) 207; West Chicago Street R. Co. v. McNulty, 64 Ill. App. 549 (riding on footboard); Wood v. Brooklyn City R. Co., 5 App. Div. (N. Y.) 492 (riding on side steps of street car); Gerstle v. Union &c. R. Co., 23 Mo. App. 361.

170 Metropolitan R. Co. v. Snashall, 3 App. (D. C.) 420; s. c. 22 Wash. L. Rep. 377.

171 Matz v. St. Paul City R. Co., 52 Minn. 159; s. c. 53 N. W. Rep. 1071. Contributory negligence could scarcely be imputed to the fact of a passenger so riding when there is not room inside; since, in large cities, street railway companies notoriously fail and refuse to provide sufficient cars to transport their patrons inside the cars during the socalled "rush hours" of morning and evening; so that, during those hours, their cars regularly go with both platforms crowded, and many passengers must ride on the platforms or not at all.

172 Seymour v. Citizens' R. Co., 114 Mo. 266; s. c. 21 S. W. Rep. 739.

173 Chicago City R. Co. v. Considine, 50 Ill. App. 471. Nor does the fact that a passenger uses the front VOL. 3 THOMP. NEG.-27

platform of a street car, as a means of entering the car, debar him from recovering damages in case of a negligent injury, by reason of a statute of New York (N. Y. Laws 1890, ch. 565, § 53), even if the statute is properly construed as applying to street cars: Morris v. Eighth Ave. R. Co., 68 Hun (N. Y.) 39; s. c. 52 N. Y. St. Rep. 61; 22 N. Y. Supp. 666. That the provisions of New York Act 1850, § 46, that in case any passenger of any railroad shall be injured while on the platform of a car or on any baggage, wood, or freight car, in violation of printed regulations, posted up in a conspicuous place inside of its passenger cars, the company shall not be liable for the injury, do not apply to horse railroads,-see Vail v. Broadway R. Co., 6 Misc. (N. Y.) 20; s. c. 58 N. Y. St. Rep. 124; 26 N. Y. Supp. 59; s. c. aff'd 147 N. Y. 381. It has even been held that for a passenger to stand on the platform of the trail car in a moving cable train, in accordance with custom, is not negligence as a matter of law, in the absence of any rule of the company against it: Muldoon v. Seattle City R. Co., 7 Wash. 528; s. c. 22 L. R. A. 794; 35 Pac. Rep. 422.

174 Graham v. Manhattan R. Co., 149 N. Y. 336; s. c. 43 N. E. Rep. 917; Lax v. Forty-Second St. R. Co., 46 N. Y. Super. Ct. 448 (state of

417