gross negligence of the servants of the company.333 Thus, it has been held that a passenger in charge of horses upon a stock train, who is informed by the conductor that the train will remain at a certain place for a specified time, long enough for him to obtain a meal, and that he must thereafter ride in the car with the horses,— has a right to assume that he may safely enter the car at any place at which he finds it within the time named.35 334

$2994. Boarding Cars by Improper Methods.-Neither was it contributory negligence, as matter of law, for a female passenger, in boarding a car, to use the "slope" of the station platform when it was covered with ice, instead of the steps of the platform, also provided for the purpose of boarding the cars, although she was cautioned to be careful, as the platform was slippery.335 Neither was it contributory negligence as matter of law for a stockman, going, with the knowledge of the conductor, to attend to his stock at a station, to attempt to mount the train by means of a ladder on the side of a car, where he was injured by reason of the train being started before he had an opportunity to get back into the caboose.330

§ 2995. Not Negligence per se to Attempt to Board a Train in Motion. It can not be affirmed that a person is guilty of contributory negligence, as matter of law, from the mere fact that he attempts to board a railway train while it is in motion. If the train does not

233 Louisville &c. R. Co. v. Long, 94 Ky. 410; s. c. 15 Ky. L. Rep. 199; 22 S. W. Rep. 747.

34 Pitcher v. Lake Shore &c. R. Co., 61 Hun (N. Y.) 623; s. c. 40 N. Y. St. Rep. 896; 16 N. Y. Supp. 62; s. c. aff'd 137 N. Y. 568. Another court has held that the act of a woman in entering a car which had been left standing, with the brakes set, on the grounds of a sanitarium, a few minutes before the time for it to start and when there was no one in charge of it, but when other women and children were already in it, was not negligence as matter of law, which would prevent a recovery for injuries occasioned by the starting of the car when a small boy let off the brakes,-especially where no rules of the company against entering the car before notice had ever been published or posted, and she had no actual knowledge of them: Western Maryland R. Co. v. Herold, 74 Md. 510; s. c. 14 L. R. A. 75; 22 Atl. Rep. 323.

336 Rathgebe v. Pennsylvania Co., 179 Pa. St. 31; s. c. 39 W. N. C. 528; 36 Atl. Rep. 160; 27 Pitts. L. J. (N. S.) 388.

336 Fitchburg R. Co. v. Nichols, 85 Fed. Rep. 945; s. c. 50 U. S. App. 297; 29 C. C. A. 500. Compare Chicago &c. R. Co. v. Elliott, 12 U. S. App. 381; s. c. 55 Fed. Rep. 949; 5 C. C. A. 347; 20 L. R. A. 582, in which case the conductor had no knowledge that the person injured was in a dangerous position. - - - - A woman, with two young children in her charge, went to the front end of the smoking car, in order to board the train. As one of her children was entering the car, he was thrown against the stove and injured. It was held that it was not negligence, as matter of law, to attempt to board a car by the front end, where provision had been made for passengers to get on or off at either end: Peterson v. Delaware &c. R. Co., 9 Kulp (Pa.) 552.

stop at the proper stopping place for a sufficient length of time to enable the passenger to get on before it starts, and the passenger, thus coerced by the negligence of the company, attempts to board the train while it is slowly moving, and is injured in the attempt, contributory negligence will not be imputed to him, but he will be allowed to recover damages.3 337 The rate of speed at which the trair is moving, and whether it stops for a sufficient length of time to enable the passengers who are in waiting to get aboard, are circumstances to be considered in deciding the question; and it is accordingly, within reasonable limits, a question of fact for the jury.3** Another court has held that a railway company is bound only to ordinary diligence in favor of a passenger who heedlessly neglects its signals and tries unreasonably to mount its train while in motion. It is not, for example, bound to keep its track clear for the benefit of one who, in consequence of having neglected the signals of a train. pursues the train along the track and tries to board it after it has left the station, and in so doing receives an injury.330 The principle is that while it is the duty of a railway company to furnish and maintain a platform at a convenient and suitable place, by which passengers can safely and securely enter the cars when the train is placed

337 Johnson v. West Chester &c. R. Co., 70 Pa. St. 357; s. c. 11 Am. L. Reg. 159; Baltimore &c. R. Co. v. Kane, 69 Md. 11; s. c. 12 Cent. Rep. 95; 13 Atl. Rep. 387; Texas &c. R. Co. v. Davidson, 68 Tex. 370; s. c. 4 S. W. Rep. 636; Murphy v. St. Louis &c. R. Co., 43 Mo. App. 342; Swigert v. Hannibal &c. R. Co., 75 Mo. 475; Houston &c. R. Co. v. Stewart, 14 Tex. Civ. App. 703; s. c. 37 S. W. Rep. 770; Distler v. Long Island R. Co., 151 N. Y. 424; s. c. 35 L. R. A. 762; 45 N. E. Rep. 937; Illinois &c. R. Co. v. Cheek, 152 Ind. 663; s. c. 1 Rep. (Ind.) 975; 53 N. E. Rep. 641; Louisville &c. R. Co. v. Bean, 9 Ind. App. 240; s. c. 36 N. E. Rep. 443; Western R. Co. v. Wilson. 71 Ga. 22; Stager v. Ridge Ave. R. Co., 119 Pa. St. 70; s. c. 11 Cent. Rep. 428; 12 Atl. Rep. 821; 21 W. N. C. (Pa.) 131; Fulks v. St. Louis &c. R. Co., 111 Mo. 335; s. c. 19 S. W. Rep. 818; Dawson v. Boston &c. R. Co., 156 Mass. 127; s. c. 30 N. E. Rep. 466; Birmingham R. Co. v. Clay, 108 Ala. 233; s. c. 19 South. Rep. 309; North Birmingham R. Co. v. Liddicoat, 99 Ala. 545; s. c. 13 South. Rep. 18. An extensive review of the authorities on the subject of injuries in getting on and off

railroad trains is contained in a note to Carr v. Eel River &c. R. Co., 98 Cal. 366, in 21 L. R. A. 354.

338 Swigert v. Hannibal &c. R. Co. 75 Mo. 475. In this case, a long list of instructions was examined by the court and approved with slight exceptions. That it is a question of fact for the jury, the question be ing whether the person attempting to board the train acted with ordinary care under all the circumstances, was held in the following cases:North Birmingham St. R. Co. v. Liddicoat, 99 Ala. 545; s. c. 13 South Rep. 18; Louisville &c. R. Co. v. Bean, 9 Ind. App. 240; s. c. 36 N. E. Rep. 443 (depends in part on the special justification the passenger may have had for attempting it). 33 Perry v. Central R. Co., 66 Ga 746. So, where a person who had been warned of the approach of a train went out for the express purpose of getting upon it, and by his neglect placed himself so close to the track as to be struck by a passing car, the railroad company was not liable for his injury: Pennsylva nia R. Co. v. Bell, 122 Pa. St. 58; s. c. 22 W. N. C. (Pa.) 370; 15 Atl. Rep. 561.

in position for the reception of passengers,-yet such a company does not owe any duty to passengers so to construct its depot that it shall be safe for them to attempt to get upon its trains while in motion. The existence of a post so near the railway track as to strike a passenger while hanging onto the railing of the coach in his attempt to board a train while moving, has been held not such negligence as would render the company liable to the passenger for a hurt thus received.340

§ 2996. Illustrations of this Rule.-For example, the courts have refused to impute contributory negligence, as matter of law, to a passenger who was injured in trying to board a train which started before the time officially designated for its departure;341 to a passenger who attempted, after signal to start had been given, to get on a train which was at rest when he began his attempt, knowing that the doors had been locked until just before that time, and that many persons were waiting to take the train;342 to a woman who is injured in attempting to step from the ground to the lowest step of a car which she has been invited to board, where she relies on the promises and assurances of an employé of the company that he will render her safe assistance;343 to a passenger who is injured by being thrown from the train by a sudden jerk or lurch, which takes place. after he has safely boarded the car and reached the top step with one foot upon the platform, so that it may be regarded as the proximate cause of the accident;344 to a boy fifteen years old who was injured while attempting to board a train moving at the rate of twelve or fifteen miles an hour, where he would not have made the attempt but for the invitation of the brakeman;345 to a passenger who was

340 Chicago &c. R. Co. v. Scates, 90 Ill. 586. In an action to recover damages for personal injuries sustained by one who was struck by a train while attempting to board another train, an instruction which assumed that the train was running at the rate of eight or ten miles an hour, and which suggested that it usually ran into the station among ; the

passengers at that rate of speed,-was held erroneous: Southern &c. R. Co. v. Smith, 52 U. S. App. 708; s. c. 40 L. R. A. 746; 30 C. C. A. 58; 86 Fed. Rep. 292. There 1 is a curious decision to the effect that an intending passenger was not, as matter of law, guilty of contributory negligence in allowing her attention to be diverted while she was looking in her pocket for money to

pay her fare, so as to preclude a recovery for injuries from falling over a person standing or kneeling in a narrow passage-way leading to the station in such a manner that his limbs extended across the passageway: Lycett v. Manhattan R. Co., 12 App. Div. (N. Y.) 326; s. c. 42 N. Y. Supp. 431.

341 Texas &c. R. Co. v. Davidson, 68 Tex. 370; s. c. 4 S. W. Rep. 636.

342 Dawson v. Boston &c. R. Co., 156 Mass. 127; s. c. 30 N. E. Rep. 466.

343 Illinois &c. R. Co. v. Cheek, 152 Ind. 663; s. c. 1 Rep. (Ind.) 975; 53 N. E. Rep. 641.

344 Distler v. Long Island R. Co., 151 N. Y. 424; s. c. 35 L. R. A. 762; 45 N. E. Rep. 937.

345 Western &c. R. Co. v. Wilson, 71 Ga. 22. Contrary to the above,

injured in the act of stepping from a station platform to a train, moving at the rate of two or three miles an hour, where there was nothing to indicate any unusual or peculiar danger.346 Moreover, although negligence may be imputable to a passenger for attempting to board a moving train under particular circumstances, yet if the injury which the passenger receives is not the proximate result of the attempt, damages may be recovered, as where a female passenger, boarding a moving train, was pushed by the brakeman after she had got upon the steps, so that she fell upon the platform and was injured.347 So it has been held that the mere fact that the train is distinctly moving, or under way, does not in every case make it negligence, in law, to make the attempt; especially where, by reason of the negligence of the trainmen, a reasonable opportunity has not been given to get on. Such a case should be submitted to the jury,348

§ 2997. Not Negligence to Assist Another to Board a Moving Train. For stronger reasons, it is not negligence per se for one person to assist another to get on a moving train.349

§ 2998. Doctrine that an Attempt to Board a Moving Train is Negligence. On the other hand, there are decisions to the effect that, to attempt to board a railway train while it is moving, without the invitation of those in charge of it, is negligence as matter of law.350 Such an act is contributory negligence as matter of law, where there is a valid municipal ordinance forbidding it.351 It has

another court has held that a railroad company is not liable for injuries to a boy twelve years old in jumping on a train while in motion at the invitation of a brakeman, such invitation being beyond the Scope of his authority: Cotter v. Frankford &c. R. Co., 15 Phila. (Pa.) 255. Compare post, § 3321. So, where a trespassing boy, having no right to get upon a train, attempted to board it while in motion, and there was no negligence on the part of any of the trainmen: Chicago &c. R. Co. v. Lammert, 12 Ill. App. 408.

340 Distler v. Long Island R. Co., 151 N. Y. 424; s. c. 35 L. R. A. 762; 45 N. E. Rep. 937.

347 Reed v. Pennsylvania R. Co., 21 Wash. L. Rep. 549; s. c. 56 Fed. Rep. 184.

348 Johnson v. West Chester &c. R. Co., 70 Pa. St. 357; s. c. 11 Am. L.

Reg. 159; Kansas &c. R. Co. v. Dorough, 72 Tex. 108; s. c. 10 S. W. Rep. 711 (person attempted to board the train while in motion because it failed to stop at the station).

340 Houston &c. R. Co. v. Stewart. 14 Tex. Civ. App. 703; s. c. 37 S. W. Rep. 770.

350 Houston &c. R. Co. v. Stewart. 14 Tex. Civ. App. 703; s. c. 37 S. W. Rep. 770; Walthers v. Chicago &c. R. Co., 72 Ill. App. 354 (slowly moving); Missouri &c. R. Co. v. Texas &c. R. Co., 36 Fed. Rep. 879; Phillips v. Rensselaer &c. R. Co., 49 N. Y. 177 (slowly moving); Hunter v. Cooperstown &c. R. Co., 112 N. Y. 371; s. c. 2 L. R. A. 832 (four to six miles per hour); Harvey v. Eastern R. Co., 116 Mass. 269; Denver &c. R. Co. v. Pickard. 8 Colo. 163 (five or six miles an hour).

351 Mills v. Missouri &c. R. Co. (Tex. Civ. App.), 57 S. W. Rep. 291.

been held that an attempt to board a moving train on an elevated railroad is negligence as matter of law.352 Another court has held that to attempt to board a moving train is prima facie evidence of contributory negligence in a passenger injured in so doing, and casts upon him the burden to bring himself within some exception to the general rule that such conduct will be deemed the proximate cause of the injury.3

§ 2999. Attempting to Board a Rapidly Moving Train is Negligence. But it is negligence as matter of law for the passenger to attempt to board the train after it has acquired considerable velocity.35 The conduct of a passenger in running after or alongside a rapidly moving train, and endeavoring to leap or climb upon it, is, in general, an indication of such recklessness that he can not recover for injuries received in the attempt.355 Especially is this true