floor of the upper section of a double-decked car, while it is moving, whereby he is injured by coming in contact with a bridge, does not impute contributory negligence to him as matter of law, but merely raises a question of negligence for the jury.2

223

§ 2966. Further of Riding on the Top of a Railway Train. 224— Riding on the top of railway cars is generally held to be an act of such recklessness and folly as to amount to contributory negligence per se, 225 in case of an injury received in consequence of so doing. It has been so held where a shipper of poultry, who accompanied his property, attempted to reach the car in which it was, by walking over the tops of other cars, when it was not necessary to do so, and he could have reached the car in safety by walking upon the ground ;*** where a passenger upon a mixed train voluntarily remained upon the top of a box car, after being requested by the conductor to get down, and being warned as to the risks which he thereby incurred, and was injured by being jolted from the car;228 where a passenger chose to ride on the top of a freight car, when he might have ridden in the caboose, precluding a recovery of damages for injuries received by him from a derailment of the train;229 where a drover,

223 Baltimore &c. Turnpike Co. v. Leonhardt, 66 Md. 70; s. c. 3 Cent. Rep. 713. Case where a stockman, attending to cattle on the train, was struck by a water pipe, alleged to be out of its proper place, as he was trying to re-enter the caboose from the top of the car at the place where employés enter, after having attended to his cattle, when the train stopped for water, and it was held a question for the jury whether he ought to have seen the water pipe, and protected himself from injury from it: Missouri &c. R. Co. v. Callahan (Tex.), 12 S. W. Rep. 833; s. c. 41 Am. & Eng. Rail. Cas. 85. Evidence admissible in such a case of the position of the water pipe, and that the plaintiff would not have been hurt if it had been in its proper place; that he climbed upon a car, instead of entering the caboose by the door, because the train started without giving him sufficient notice to get into it by the door; and that he went from the car to the caboose and attempted to enter it from the cupola at the request of the conduc

tor: Missouri &c. R. Co. v. Callahan, supra.

224 This section is cited in §§ 2913, 2965.

225 McCorkle v. Chicago &c. R. Co., 61 Iowa 555.

226 Beyer v. Louisville &c. R. Co., 114 Ala. 424; s. c. 21 South. Rep. 952; 9 Am. & Eng. Rail. Cas. (N. S.) 819; Aufdenberg v. St. Louis &c. R. Co., 132 Mo. 565; s. c. Am. & Eng. Rail. Cas. (N. S.) 323; 34 S. W. Rep. 485; Kimball v. Palmer, 80 Fed. Rep. 240; s. c. 25 C. C. A. 394; 42 U. S. App. 399; St. Louis &c. R. Co. v. Rice, 9 Tex. Civ. App. 509; s. c. 29 S. W. Rep. 525; Gross v. South Chicago St. R. Co., 73 Ill. App. 217: s. c. 30 Chic. Leg. News 186.

227 Kimball v. Palmer, 80 Fed. Rep. 240; s. c. 25 C. C. A. 394; 42 U. S. App. 399.

228 Aufdenberg v. St. Louis &c. R. Co., 132 Mo. 565; s. c. 3 Am. & Eng. Rail. Cas. (N. S.) 323; 34 S. W. Rep. 485.

229 Beyer v. Louisville &c. R. Co., 114 Ala. 424; s. c. 21 South. Rep. 952; 9 Am. & Eng. Rail. Cas. (N. S.) 819.

entitled to ride in the caboose of a freight train, was some distance ahead of it when the train halted, and attempted to reach it by clambering upon one of the forward cars, in the nighttime, one hand being encumbered with a lantern and a prod-pole, and, while making the attempt, fell and was run over. It has been held that walking over a train of flat cars, when in motion, or stepping from one to the other, is not negligence as matter of law.231

230

.234

§ 2967. Standing on the Seat, or Standing or Walking in the Aisle or Passage-Way.-The passenger is not, as matter of law, obliged to remain in his seat from the time he first takes it until the train comes to a final stop at his destination.232 Therefore, it is a question for the jury whether he is lacking in reasonable care in leaving his seat and passing to another part of the car;233 or in failing to take the first seat which he reaches, although he knows that a train is about to be coupled to the car;23* or, in case of a rheumatic passenger, in holding up the back of a seat selected by him until his child can pass into the seat ahead of him;235 or, in case of an infirm passenger, in carrying bundles in his arms, where he is injured by the fact that other cars are violently run against the car which he has entered, before he has taken his seat;236 or in leaving his seat and standing in the passage-way of the car, for the purpose of hastening his departure, after the approach of the train to the station at which he is to alight, has been announced;237 or in standing in the aisle and making preparations to leave, by brushing and plaiting a child's

230 McCorkle v. Chicago &c. R. Co., 61 Iowa 555. Nor is a railroad company required so to construct the water tanks along its track as to prevent injury to passengers who assume to ride on the top of a caboose, where such place is not constructed for their accommodation, as the rules of the company forbid them so to ride: St. Louis &c. R. Co. v. Rice, 9 Tex. Civ. App. 509; s. c. 29 S. W. Rep. 525. Nor is a street railway company chargeable with negligence toward a person riding for his own convenience on the top of what is known as a "barrel car," which is two feet higher than the ordinary box car, from the fact of maintaining at a railroad crossing, at the line of the street railway, a trolley wire not sufficiently high to permit of the pas

sage of a person standing upright upon such a car, but high enough to permit of the passage of persons standing upon ordinary cars, or of a person sitting upon a barrel car: Gross v. South Chicago City R. Co., 73 Ill. App. 217.

231 Atchison &c. R. Co. v. McCandliss, 33 Kan. 366.

232 Gee v. Metropolitan R. Co., L. R. 8 Q. B. 161.

233 Burr v. Pennsylvania R. Co., 64 N. J. L. 30; s. c. 44 Atl. Rep. 845.

234 Tillett v. Norfolk &c. R. Co., 118 N. C. 1031; s. c. 24 S. E. Rep. 111.

235 Tillett v. Norfolk &c. R. Co., supra.

236 Tillett v. Norfolk &c. R. Co., supra.

237 Barden v. Boston &c. R. Co., 121 Mass. 426; s. c. 16 Am. L. Reg. 664.

hair;238 or, having entered a car, and finding no seats vacant, in continuing to stand, looking about for a seat.239 Contributory negligence has been predicated upon the act of a female passenger in passing from one car to another without necessity, and, without look ing to see where she is stepping, in placing her foot on the buffers between the cars, just as the train, which has no fixed length of time for stopping, suddenly starts and causes the buffers to open and her foot to slip, in consequence of which she sustains injuries;240 upon the act of a female passenger, searching for a seat with a satchel in her hand, in stumbling and falling over satchels in the aisle, the ear being lighted and none of the employés being therein at the time;241 upon the act of a passenger in going from one car to another of a rapidly moving train,—in which case the passenger is deemed to assume the risk of all accidents arising from the motion of the train, and not attributable to the negligence of the company;242 upon the act of a passenger in leaving his seat while the train was slowing up after a station had been called, but before reaching it, if, by remaining in his seat until the train stopped, he would have escaped injury:243 upon the act of a passenger in following the conductor to the door of the car after the latter's announcement of the station at which the passenger intended to alight, the conductor leaving the door open after him, and the passenger, when he reached it, being precipitated from the platform by the motion of the car;244 upon the act of a female passenger in standing upon a seat of the car in order to remove her bundles from a receptacle, who is thrown therefrom by the starting of the train, where it had stopped a sufficient time to allow passengers to alight, and none of the employés were aware of her position, or of the fact that her bundles were so placed.245

238 Railroad Co. v. Pollard, 22 Wall. (U. S.) 341.

280 Pollard v. New York &c. R. Co., 7 Bosw. (N. Y.) 437.

240 Snowden v. Boston &c. R. Co., 151 Mass. 220; s. c. 24 N. E. Rep. 40.

241 Stimson v. Milwaukee &c. R. Co., 75 Wis. 381; s. c. 44 N. W. Rep. 748.

242 Stewart v. Boston &c. R. Co., 146 Mass. 605; s. c. 6 N. Eng. Rep. 273; 16 N. E. Rep. 466. Substantially to the same effect, see Costikyan v. Rome &c. Co., 58 Hun (N. Y.) 590; s. c. aff'd 128 N. Y. 633.

243 Dunn v. Pennsylvania R. Co.,

47 Phila. Leg. Int. 524 (charge to jury).

244 Blitch v. Central R. Co., 76 Ga. 333.

245 East Tennessee &c. R. Co. v. Green, 95 Ga. 736; s. c. 22 S. E. Rep. 658. But in Kansas, the question whether it is contributory negli gence for a passenger in the caboose of a freight train to stand up and lean forward to spit in the stove, while the train is in motion,-is a question for the jury, in case of his being injured by a sudden movement of the car: St. Louis &c. R. Co. v. Burrows, 62 Kan. 89; s. c. 61 Pac. Rep. 439.

$2968. Acts of this Kind to which Contributory Negligence was not Imputed. On the other hand, the imputation of contributory negligence has been denied in the case where a passenger in an elevated railway car left his seat to go toward the door upon its being held open by a trainman on approaching the station of the passenger's destination.249 It was also denied, and the company was held liable, where the passenger left his seat before the arrival of a train at a way station at which he was told by the conductor the train would stop; and where, after it did stop, the passenger attempted to get off, when the train was started with a sudden jerk, injuring him; it appearing that if he had kept his seat until the car stopped, he could not have reached the step of the car before it started up.250

§ 2969. Passing from One Car to Another while Train in Motion.It is not negligence as matter of law for a passenger, using reasonable care and caution, to pass from one car to another on the same train while the train is in motion.251 Opposed to this doctrine there is a class of decisions which hold that a passenger who voluntarily passes from one car to another on a rapidly moving train, is guilty of contributory negligence barring a recovery of damages, for injuries received while making the attempt.252 For example, it has

249 Colwell v. Manhattan R. Co., 32 N. Y. St. Rep. 991; s. c. 10 N. Y. Supp. 636.

250 Wood v. Lake Shore &c. R. Co., 49 Mich. 370.

251 Sickles v. Missouri &c. R. Co., 13 Tex. Civ. App. 434; s. c. 35 S. W. Rep. 493; Chesapeake &c. R. Co. v. Clowes, 93 Va. 189; s. c. 24 S. E. Rep. 833 (passenger thrown from the train and injured); Davis v. Louisville &c. R. Co. (Miss.), 10 South. Rep. 450; Bronson v. Oakes, 76 Fed. Rep. 734; s. c. 40 U. S. App. 413; 22 C. C. A. 520; McAfee v. Huidekoper, 24 Wash. L. Rep. (D. C.) 366; s. c. 34 L. R. A. 720; 9 App. D. C. 36. It was so held in a case where a passenger attempted while the train was in motion to pass from the smoking car to another car, in which his wife was riding, and who was killed by being thrown from the train while it was rounding a curve, by an unusually severe lurching or swaying of the train: McAfee v. Huidekoper, 24 Wash. L. Rep.

(D. C.) 366; s. c. 34 L. R. A. 720; 9 App. D. C. 36. There is a holding to the effect that a passenger upon a vestibuled train, who, in going from one car to another, leaves the door open to light him through a dark vestibule on his return, is not bound to anticipate that the other door of the vestibule will be left open without a guard, so as to render him guilty of contributory negligence in proceeding toward the light shining through the windows of the car, under the mistaken supposition that it is shining through the doorway he wishes to enter: Bronson v. Oakes, 40 U. S. App. 413; s. c. 22 C. C. A. 520; 76 Fed. Rep. 734.

252 Stewart v. Boston &c. R. Co., 146 Mass. 205; s. c. 2 L. R. A. 166; State v. Maine &c. R. Co., 81 Me. 84; Snowden v. Boston &c. R. Co., 151 Mass. 220; Hill v. Birmingham &c. R. Co., 100 Ala. 447; Bemiss V. New Orleans &c. R. Co., 47 La. An. 1671; s. c. 18 South. Rep. 711.

been held that a passenger who attempts to go from one car to another while the train is moving is guilty of such contributory negligence as will prevent recovery for injuries from being thrown from the platform by a sudden jerk of the train, although such jerk is caused by a defective coupling; since the passing from one car to another is the proximate cause of the injury.253 It is quite obvious that, under either theory, a passenger thus exposing himself to danger will have no right of recovery for an injury received by being jostled or thrown down, in consequence of the ordinary movements of the train, such as its lurches in going over irregularities of the track, or in rounding curves. The reason is that by going into such a dangerous place, he assumes the risk of injuries from the ordinary incidents of the motion of the train, the same being of good construction and in good repair, operated by competent men and without negligence, over a track which is reasonably safe for that purpose.

§ 2970. Riding Standing Up.-Whether a passenger is imputable with contributory negligence from the fact that he rides standing up instead of sitting down, will ordinarily depend upon the inquiry whether the carrier has furnished him with a seat. As already seen,254 it is the duty of railway carriers to furnish seats for passengers unless their means of transportation are overcrowded by a sudden and unexpected influx of passengers. In the latter case, it is believed that for a passenger to ride standing up will not be deemed contributory negligence as matter of law, and it is doubtful whether it would be regarded as evidence of contributory negligence to go to a jury, especially in the case of the every-day occurrence where, on the street cars, whether propelled by horses, or by an underground cable, or by electricity, sufficient cars are not furnished to accommodate the passengers in the morning and in the evening, when going to their business or returning to their homes, unless some of them stand up. To hold that a passenger, under such circumstances, is imputable with contributory negligence because he boards the train when he is obliged to stand up rather than eat a cold dinner, would be to predicate contributory negligence upon the ordinary conduct of the people, which is opposed to the principles of law. But, especially in the case of steam railway trains and others which run at a high rate of speed, and which are consequently liable to be

253 Bemiss v. New Orleans &c. R. 254 Ante, §§ 2572, 2857. Co., 47 La. An. 1671; s. c. 18 South.

Rep. 711.