in the case of a passenger endeavoring to climb upon a car platform. already crowded, the train moving rapidly, and persisting in the attempt, although once shaken off by the jerking of the train;356 or when the passenger is in such a situation as to make the attempt obviously dangerous;357 and although invited by the conductor to make the attempt, if the circumstances are such that an ordinarily prudent man would not make the attempt, although so invited; or where the train is not equipped with appliances to enable a person to board it in safety after it has begun to move.359 And this is especially true in the case of aged or infirm passengers, such as a ́man sixty-five years of age, benumbed with cold;360 or in case of a man seventy-three years old;361 or in case of one who is so crippled as to need assistance;362 or in case of one, both of whose arms are full of bundles, where the train is moving at the rate of from four to seven miles an hour.363

$3000. Other Cases where Such Acts were Held Negligent.Negligence has accordingly been predicated on the act of a passenger in endeavoring to board a train moving at the rate of six miles an hour, even though the train was evidently about to pass the station. where it was advertised to stop and where he was waiting for it.

167; Knight v. Pontchartrain R. Co., 23 La. An. 462; Hubener v. New Orleans &c. R. Co., 23 La. An. 492.

35 Phillips v. Rensselaer &c. R. Co., 49 N. Y. 177; s. c. 57 Barb. (N. Y.) 644. See also, Harper v. Erie R. Co., 32 N. J. L. 88.

357 Hunter v. Cooperstown &c. Co., 126 N. Y. 18; s. c. 26 N. E. Rep. 958; 12 L. R. A. 429; Blair v. Grand Rapids &c. R. Co., 60 Mich. 124; s. c. 26 N. W. Rep. 855.

358 Kansas &c. R. Co. v. Dorough, 72 Tex. 108; s. c. 10 S. W. Rep. 711.

359 Thus, it was held that to attempt to jump upon the stock car of a freight train while in motion, which car had no convenience for getting upon it safely, instead of boarding the train while standing still, or waiting for the caboose to arrive, was such contributory negligence as would preclude a recovery of damages for the hurt thereby produced: Warren v. South Kansas R. Co., 37 Kan. 408; s. c. 15 Pac. Rep. 601.

300 McMurtry v. Louisville &c. R. Co., 67 Miss. 601; s. c. 7 South. Rep. 401; 7 Rail. & Corp. L. J. 473.

361 Mvers v. New York &c. R. Co., 82 Hun (N. Y.) 36; s. c. 63 N. Y. St.

Rep. 475; 31 N. Y. Supp. 153; s. c. aff'd 34 N. Y. Supp. 807.

302 Cincinnati &c. R. Co. v. Nolan. 8 Ohio C. C. 347.

363 Birmingham R. &c. Co. v. Clay. 108 Ala. 233; s. c. 19 South. Rep. 309. Accordingly, it has been held that an intending passenger who at tempts to board a railroad train under increasing speed of six to seven miles an hour, is guilty of negligence which will prevent recovery for his injuries, although he is young, vigorous, and has been a constant traveller on railroads, and is told by the conductor to jump aboard: Heaton v. Kansas City & R. Co., 65 Mo. App. 479. It has been held that the presumption of negligence in the case of one attempting to board a moving train is even stronger than in the case of one attempting to alight from a moving train: Soloman v. Manhattan R. Co., 103 N. Y. 437; s. c. 4 Cent. Rep. 775; 31 Hun (N. Y.) 5. But it is plain that there is no presumption of law applicable to such a case.-no presumption except the presumption of judges who assume to perform the office of jurors and to try the facts.

.364

without stopping, and the conductor called to him to jump on, if he was going 36 upon the act of a shipper of cattle who, having previously passed over the road, knows what to do on arriving at a station, but, instead of adopting the course which his previous experience and judgment would indicate as the correct one, on a dark, rainy night, when the cars are wet, slippery, and in motion, attempts to mount upon the top of a car, with his overcoat on and a clumsy satchel in one hand;365 upon the act of a passenger sixty-five years of age, who, on a cold, dark night, after waiting in the snow at a flag station and becoming benumbed, attempts, with his valise in one hand, to board a moving train by seizing the railing with the other, and, upon missing his foothold, is dragged 150 yards, during which time he holds on to the valise ;366 upon the act of a passenger who boards an elevated steam railway car in motion, by getting on the sheet-iron covering of the steps of the last platform of the train, and maintains himself in that position by holding to the iron gate barring entrance, until struck by a structure near the track and knocked into the street below;367 upon the attempt to jump upon a train going about two miles an hour, the act being apparently dangerous, although the conductor told him to jump on.368 So, it has been well held that a railway company is not liable for personal injuries sustained by a passenger coming in violent contact with the edge of a platform in dangerously close proximity to the train, where he knew of its situation and had ample time to board the train while it was standing still, but neglected to do so for his own convenience, and momentarily forgot the dangerous proximity of the platform.369 So, where a passenger, after boarding a train, returned to the station without notifying the trainmen while the train was starting, and then ran to catch it without looking or heeding the warnings of persons on the platform, and was killed while crossing another track in front of an approaching train, it was held that no damages could be recovered.370 So, it has been held that a railroad company which provides a reasonably safe platform near the depot, from which passengers desiring to board the train may do so safely and conveniently, is not liable for an injury to one who attempts to board a train while it is moving at some distance from the platform, on the ground.

24 Hunter v. Cooperstown &c. R. Co.. 112 N. Y. 371.

30 Richmond &c. R. Co. v. Picklesimer, 89 Va. 389; s. c. 13 Va. L. J. 646; 10 S. E. Rep. 44.

360 McMurtry v. Louisville &c. R. Co., 67 Miss. 601; s. c. 7 Rail. & Corp. L. J. 473; 7 South. Rep. 401.

367 Carroll v. Interstate &c. Co., 107 Mo. 653; s. c. 17 S. W. Rep. 889.

368 Myers v. New York &c. R. Co., 34 N. Y. Supp. 807; aff'g s. c. 31 N. Y. Supp. 153.

369 McLaren v. Alabama &c. R. Co., 100 Ala. 506; s. c. 14 South. Rep. 405. 370 Chaffee v. Old Colony R. Co., 17 R. I. 658; s. c. 24 Atl. Rep. 141.

that it is its duty to provide a platform at such place and to keep the track clear from obstructions.371

§ 3001. When the Act of the Passenger Deemed the Proximate Cause of his Injury.-But in conformity with what has already appeared,372 whether the attempt of the passenger to board the train while in motion be regarded as negligent or prudent, yet where the train has stopped long enough to afford the passenger a reasonable time in which to get on board before it starts, and he nevertheless chooses to wait until it has commenced moving, and then attempts to board it, and in so doing is hurt, he can not recover damages from the company, because the company has done no wrong; but the negligence of the passenger in delaying until the train has started is to be deemed the proximate cause of his injury. On the other hand, where the passenger stepped from the station platform upon the train, while it was going but two or three miles an hour, and, after he had safely boarded the car and had reached the top step with one foot on the car platform, was thrown down by a sudden lurch or jerk of the train,-the negligence of the company, and not that of the passenger, was deemed the proximate cause of the injury.374 So, the negligence of a passenger in boarding a moving

373 Illinois &c. R. Co. v. Slatton, 54 Ill. 133; Chicago &c. R. Co. v. Scates, 90 II. 586. A corresponding rule exists as to passengers attempting to get off a train while in motion: Ohio &c. R. Co. v. Stratton, 78 Ill. 88; Phillips v. Rensselaer &c. R. Co., 49 N. Y. 177. Compare Illinois &c. R. Co. v. Chambers, 71 III. 520; Spannagle v. Chicago &c. R. Co., 31 Ill. App. 460. Accordingly, where a passenger, while attempting so to board a train, hung on to the iron railing of the platform, and, while so hanging, was brought in contact with an object near the track, it was held that he could not recover for the injury: Phillips v. Rensselaer &c. R. Co., 49 N. Y. 177; Chicago &c. R. Co. v. Scates, 90 Ill. 586. So, a passenger on a freight train, who attempted to get on board after the train had started, was not entitled to recover for an injury thereby received, where the caboose was standing a short distance from the depot platform, and the conductor announced in his hearing that it would not be brought up to the platform

373

and stopped, and, after such announcement, he had sufficient time before the train started to get safely on board: Hays v. Wabash R. Co., 51 Mo. App. 438. The court reasoned that he had no right to assume without inquiry that the caboose could be pulled up and would stop at the platform. So, where a passenger negligently attempted to board a moving train, and in so doing missed his hold, and was dragged beyond the station platform, and was thrown into a ditch which had been left temporarily uncovered, while work thereon was suspended by reason of rain,-it was held that he could not recover damages for his injury on the theory of the negligence of the company in leaving the ditch in that condition, since his own rash act in attempting to board the train when in motion was the proximate cause of his injury: Bailey v. Cincinnati &c. R. Co., 15 Ky. L. Rep. 226; s. c. 20 S. W. Rep. 198 (no off. rep.).

374 Distler v. Long Island R. Co., 151 N. Y. 424; s. c. 35 L. R. A. 762; 45 N. E. Rep. 797; rev'g s. c. 78 Hun (N. Y.) 252; 60 N. Y. St. Rep. 216; 28 N. Y. Supp. 865.

train does not relieve the company from responsibility for injuries from the willful and negligent act of its employé in pushing him off the step of the car after he had gotten safely upon it.375

§ 3002. Boarding the Train while Standing Still-Train Suddenly Starting. This very frequent source of injury to passengers has been considered in a former chapter when treating of the negligence of the carrier. The governing principle with regard to the negligence of the passenger in such a case, 'seems to be that where the passenger is invited expressly or impliedly to board the train at the particular time and place, and, while attempting to board it, it suddenly starts up, injuring him, his negligence will not preclude him from recovering damages as matter of law, but the question whether he was negligent will go to the jury. It was so held under the circumstances stated in the note.376

§ 3003. Attempting to Board Cars where the Doors of the Cars are Locked.-A railway company may, without being imputable with negligence, keep the doors of its vestibule coaches closed and locked; so that if a passenger, instead of entering a coach which is open for the reception of passengers at the particular station, attempts to mount the vestibule car and pass through it to the car in which he intends to ride, and the door is locked, in consequence of which he sustains an injury, the railway company will not be liable.3: Evi

375 Sharrer v. Paxson, 171 Pa. St. 26; s. c. 37 W. N. C. (Pa.) 319; 2 Am. & Eng. Rail. Cas. (N. S.) 429; 33 Atl. Rep. 120. The attempt to board a moving elevated train, after the gate of the car had been closed, was deemed the proximate cause of the injury sustained by a passenger, in Soloman v. Manhattan R. Co.. 31 Hun (N. Y.) 5; s. c. aff'd 103 N. Y. 437.

376 A shipper of stock riding on a freight train for the purpose of caring for the stock, who was told by the conductor, upon arriving at a certain stopping place, that he would have a certain time in which to get his supper and return to the car, which would be awaiting him for that length of time, and who, upon returning before the expiration of the time allowed, finding that the train had been removed to the tracks nearest some cattle chutes, rendering it necessary, apparently, for him to board the train at once,

377

and having no knowledge of the chutes (it being dark) or of the dangerous condition of the train for getting on board, placed his foot in the stirrup to get into the car door, when the train, without warning or signal, suddenly started backwards along the chutes, and his foot was. caught, and he was dragged into the chutes for about forty feet, and suffered serious personal injuries,was not guilty of negligence as a matter of law; but the question as to his contributory negligence was one of fact for the jury: Pitcher v. Lake Shore &c. R. Co., 28 N. Y. St. Rep. 647; s. c. 8 N. Y. Supp. 389; s. c. aff'd 40 N. Y. St. Rep. 896; s. c. 16 N. Y. Supp. 62; s. c. aff'd 137 N. Y. 568; 33 N. E. Rep. 339.

377 Cleveland &c. R. Co. v. Wade, 18 Ind. App. 346; s. c. 48 N. E. Rep. 12. The passenger attempted to board the train by way of the front end of a locked vestibule car just as the train was starting, although it

dence that, to the knowledge of one injured while attempting to enter a train after the signal to start had been given, the doors were locked until just before it started, and that many persons were waiting to take it, has been held admissible on the question of due care on his part in not attempting to enter sooner, and of his haste in getting on, and also on that of the carrier's negligence in starting.3

$3004. Attempting to Board an Elevated Railway Train while in Motion. Any person acquainted with the manner in which elevated railroads, which traverse the streets of large cities, are constructed, will readily understand that an attempt to board an elevated railroad train while it is in motion, is highly dangerous, and will be able to concur in the view that contributory negligence ought to be ascribed to such an attempt, as matter of law, unless there are particular circumstances justifying it.379

§ 3005. Attempting to Board Train although Proper Facilities are not Afforded for Boarding at the Regular Stopping Place.— If a railway carrier of passengers fails to afford proper facilities to enable passengers to board the proper train safely and conveniently at a station, and, by reason of this fact, a passenger is injured without fault on his part, it will manifestly be a case for damages; but not where the passenger might have avoided the accident, notwithstanding the default of the carrier, by the exercise of reasonable care