journeys alone, jumped from a moving train, although the conductor had-but, as the court held, without authority-promised that the train would slow up at the point where the boy wished to alight, which was not a place at which the train was scheduled to stop;396 where a trespassing boy, nearly thirteen years of age, who was expert in jumping off trains, attempted to get off a train when it was running at the rate of twenty miles an hour, although the train was running at an unlawful rate of speed, and in violation of a promise made by the engineer to the boy;397 where a boy, who had been carried past the station of his destination, attempted to alight while the train was running at from six to ten miles an hour, in the absence of circumstances disclosing any immediate necessity for him to leave the train, other than a desire to leave it at his point of destination;398 where a passenger jumped from a moving train, which failed to stop at his destination, because he was on his way home to see his child who was in a dying condition, he not having been commanded or invited to leave the train by any agent or servant of the company, and the attempt to do so was not obviously dangerous;399 where a female passenger attempted to alight from the train while in motion, after it had come to a momentary stop before reaching her station, where those in charge of the train had no knowledge of her intention to leave it, although, before the train had come to a stop, they had called out the name of her station;400 where a freight train, according to custom, was running past the platform of the station without stopping, in order to allow a train to pass from a side track in the opposite direction, and, while passing the platform, a passenger jumped to the platform and was injured;401 where a passenger jumped from a railway train in the dark, while it was moving at the rate of twelve miles an hour, there being no circumstances of emergency or constraint;402 where a passenger, incumbered with hand baggage, alighted from a train moving at the rate of six miles an hour on a dark night, before it had reached the station platform

390 Schiffler v. Chicago &c. R. Co., 96 Wis. 141; s. c. 71 N. W. Rep. 97; 8 Am. & Eng. Rail. Cas. (N. S.) 122. The decision seems to be untenable. The promise of the conductor to the boy was the promise of the company, unless it was a case of collusion: Post, § 3322.

497 Howell v. Illinois &c. R. Co., 75 Miss. 242; s. c. 36 L. R. A. 545; 21 South. Rep. 746.

398 Scully v. New York &c. R. Co., 80 Hun (N. Y.) 197; s. c. 61 N. Y. St. Rep. 804; 30 N. Y. Supp. 61; s. c. aff'd 151 N. Y. 672; 46 N. E.

Rep. 1151. See, also, Kelly v. Hannibal &c. R. Co., 70 Mo. 604; Lake Shore &c. R. Co. v. Bangs, 47 Mich. 470.

399 Burgin v. Richmond &c. R. Co., 115 N. C. 673; s. c. 20 S. E. Rep. 473.

400 Victor v. Pennsylvania R. Co., 164 Pa. St. 195; s. c. 35 W. N. C. (Pa.) 473; 30 Atl. Rep. 381.

401 Hemmingway v. Chicago &c. R. Co., 67 Wis. 668.

402 Kansas City &c. R. Co. v. Owens, 58 Ark. 397; s. c. 24 S. W. Rep. 1076.

where he was to get off, he being familiar with the place, and having no reason to believe that the train would not stop at the platform as usual, nor would the advice of the conductor excuse such negligence;403 where a father had gone upon the train to assist his daughter with her valise, and, after the train had stopped a reasonable time to allow him to alight, and he gave no notice to the trainmen of his purpose to do so, and the train started, and, after it had acquired a rapid motion, he jumped from it of his own volition;404 where a person was injured in alighting from a train between stations, while it was running at its ordinary speed. 405

$3013. Conclusion from these Cases Restated.406-The conclusion from these and many other cases seems to be that, for a person to jump from a railway train while it is moving at a considerable speed, not being commanded, advised, or required to do so by any of the servants of the company, and the act not being necessary, or seemingly necessary, to avoid an impending danger, is negligence of such an obvious character that the judge may direct a nonsuit or a verdict for the defendant;407 and that this is so, although the passenger has been carried past his place of destination through the negligence of the carrier, and although it may be necessary for him to leave the train at that place in order to relieve the distress of others on account of his absence. 408 Although the direction or advice of the conductor, or other trainman, may influence the question and operate to take it to the jury, yet it seems to be a sound statement of the law of this subject that a passenger can not recover for personal injuries sustained by alighting from a moving car, either with or without the direction of the conductor, if the rapid motion of the car would make it seem likely to an ordinarily prudent man that it would be dangerous to alight.400 On the contrary, it is a proposition equally sound that a passenger is not guilty of negligence per se in jumping from a moving train by the advice or order of the conductor or other authorized servant of the carrier, on whose' opinion or judgment in the matter he has a right to rely, if the danger of such act is not apparent to a man of ordinary prudence.

403 South &c. R. Co. v. Schaufler, 75 Ala. 136.

404 Dillingham v. Pierce (Tex. Civ. App.), 31 S. W. Rep. 203 (no off. rep.). See, also, Texas &c. R. Co. v. McGilvary (Tex. Civ. App.), 29 S. W. Rep. 67 (no off. rep.).

* High v. International &c. R. Co. (Tex. Civ. App.), 55 S. W. Rep. 526. 40 This section is cited in § 3017.

410

407 Leslie v. Wabash &c. R. Co., 88 Mo. 50; s. c. 3 West. Rep. 824.

408 Lake Shore &c. R. Co. v. Bangs, 47 Mich. 470.

409 Sanders v. Southern R. Co., 107 Ga. 132; s. c. 32 S. E. Rep. 840; 14 Am. & Eng. Rail. Cas. (N. S.) 281.

410 International &c. R. Co. V. Rhoades, 21 Tex. Civ. App. 459; s. c. 51 S. W. Rep. 517; rehearing denied

411

§ 3014. Is Prima Facie Evidence of Negligence Taking Question to Jury. Doubtless a general consensus of judicial opinion could be collected in favor of the proposition that, unless the passenger is impelled by urgent circumstances, it is prima facie evidence of negligence for him to attempt to alight from a moving train,12 unless it is moving very slowly.413 Where the doctrine prevails that the fact that the passenger sustained the injury in jumping from a train while in motion creates a prima facie inference of negligence, then it follows that the burden rests upon the passenger of excusing the act by showing that it was consistent with the exercise of due care on his part under the circumstances. Whether his evidence presents such an excuse will ordinarily be a question for the jury but it is equally plain on principle that it will be a question for the judge where the evidence presented by him has no tendency to excuse the act as matter of law. But it is to be constantly kept in mind that, according to the weight of judicial authority, the mere act of alighting from a railway train while in motion creates no presumption of negligence in the sense in which the expression is here used, but leaves the question open for determination by the jury.415

414

§ 3015. When not Negligence to Leap from a Railway Train in Motion. 16-On the other hand, it can not be said, under all circumstances, as a mere conclusion of law, that a passenger on a railway train is imputable with contributory negligence from the fact of his attempting to alight from the train while in motion. Though it

52 S. W. Rep. 979. See, also, Delaware &c. R. Co. v. Webster (Pa.), 4 Cent. Rep. 638 (even while train was moving rapidly); Lewis v. Delaware &c. Canal Co., 145 N. Y. 508; s. c. 65 N. Y. St. Rep. 374; 40 N. E. Rep. 248; rev'g s. c. 80 Hun (N. Y.) 192; 61 N. Y. St. Rep. 773; 30 N. Y. Supp. 28 (passenger on wrong train, gets off by direction of conductor, train moving slowly); Watkins v. Raleigh &c. R. Co., 116 N. C. 961; s. c. 21 S. E. Rep. 409 (gets off at direction of conductor-no appearance of danger in locality or in speed of train); Baltimore &c. R. Co. v. Leapley, 65 Md. 571 (train slowed up instead of stoppingwoman loaded with bundles was told by conductor to jump off); International &c. R. Co. v. Hassell, 62 Tex. 256.

411 This section is cited in § 3017. 412 Soloman v. Manhattan R. Co., 103 N. Y. 437; s. c. 4 Cent. Rep. 778.

413 Jones v. Chicago &c. R. Co., 42 Minn. 183; s. c. 43 N. W. Rep. 1114: 7 Rail. & Corp. L. J. 113; 41 Am. & Eng. Rail. Cas. 169; McLarin v. Atlanta &c. R. Co., 85 Ga. 504; s. c. 11 S. E. Rep. 840; Western &c. R. Co. v. Goodwin, 105 Ga. 237.

414 Shannon v. Boston &c. R. Co., 78 Me. 52; s. c. 1 N. Eng. Rep. 6$1.

415 Pennsylvania Co. v. Marion, 123 Ind. 415; s. c. 23 N. E. Rep. 973: 7 L. R. A. 687; Pennsylvania R. Co. v. Lyons, 129 Pa. St. 113; s. c. 18 Atl. Rep. 759; 47 Phila. Leg. Int. 179; 41 Am. & Eng. Rail. Cas. 154: 25 W. N. C. (Pa.) 6; Covington v. Western &c. R. Co., 81 Ga. 274; s. c. 6 S. E Rep. 593; Taylor v. Missouri &c. R. Co., 26 Mo. App. 336; Central R. &c. Co. v. Miles, 88 Ala. 256; s. c. 6 South. Rep. 696; 41 Am. & Eng. Rail. Cas. 149.

416 This section is cited in § 3594. 417 Raben v. Central &c. R. Co., 74 Iowa 732.

is no doubt presumptive or prima facie evidence of negligence,— yet circumstances may, and frequently do, exist which will excuse the act and make it a question for the jury. It is so if the neces

1

sity, real or apparent, of leaving the train while in motion, has been put upon the passenger by the negligence or other unlawful act of the carrier, and the circumstances are such that the making of the attempt ought not to be imputed to the want of ordinary or reasonable care on the part of the passenger for his own safety,419-in which case the question whether the passenger has been guilty of contributory negligence will generally be a question for a jury. For instance, to step from a car not yet beyond the platform, and whose motion is so slight as to be almost or quite imperceptible, may not be negligence, and whether it is or not is for the jury to decide from the physical condition of the person and all the attendant circumstances;420 or it may be a matter of such necessity that the passenger should leave the train that he will be justified in making the attempt;421 or the passenger may act under the command or advice of the company's agents in so doing;422 or may be assisted off by the company's servants. 423 In determining the question of contributory negligence, that is to say, whether the passenger acted prudently or recklessly, the age, sex, and physical condition of the passenger injured while attempting to alight from a moving train, are circum

Pa. St. 206; s. c. 9 Atl. Rep. 317; 19 W. N. C. (Pa.) 418; Eddy v. Still, 3 Tex. Civ. App. 346; s. c. 22 S. W. Rep. 525; St. Louis &c. R. Co. v. Baker, 67 Ark. 531; s. c. 55 S. W. Rep. 941; Nichols v. Dubuque &c. R. Co., 68 Iowa 732; Louisville &c. R. Co. v. Holsapple, 12 Ind. App. 301; s. c. 38 N. E. Rep. 1167; Louisville &c. R. Co. v. Bean. 9 Ind. App. 240; s. c. 36 N. E. Rep. 443; Buck v. Manhattan R. Co., 32 N. Y. St. Rep. 51; s. c. 10 N. Y. Supp. 107; s. c. aff'd 134 N. Y. 589; 31 N. E. Rep. 628.

419 St. Louis &c. R. Co. v. Cantrell, 37 Ark. 519, 526; Cousins v. Lake Shore &c. R. Co., 96 Mich. 386; s. c. 56 N. W. Rep. 14; Franklin v. Southern &c. R. Co., 85 Cal. 63; s. c. 24 Pac. Rep. 723; Treat v. Boston &c. R. Co., 131 Mass. 371.

420 Doss v. Missouri &c. R. Co., 59 Mo. 27; Illinois &c. R. Co. v. Able, 59 Ill. 131; Kentucky &c. R. Co. v. Dills, 4 Bush (Ky.) 593. These principles were recognized in Price v. St. Louis &c. R. Co., 72 Mo. 414, and instructions which had been given to the jury were criticised in the light of them. To the same effect see Straus v. Kansas City &c. R. Co., 75 Mo. 185; Swigert v. Hannibal &c. R. Co., 75 Mo. 475.

421 Pennsylvania R. Co. v. Kilgore, 32 Pa. St. 292; Lloyd v. Hannibal &c. R. Co., 53 Mo. 509.

422 Georgia R. &c. Co. v. McCurdy, 45 Ga. 288; Lambeth v. North Caro lina R. Co., 66 N. C. 494; Lovett v. Salem R. Co., 9 Allen (Mass.) 557; Filer v. New York &c. R. Co., 68 N. Y. 124; s. c. 59 N. Y. 351; 49 N. Y. 47; Pennsylvania R. Co. v. MeCloskey's Administrator, 23 Pa. St. 526; International &c. R. Co. v. Hassell, 62 Tex. 256; Baltimore &c. R. Co. v. Leapley, 65 Md. 571; Watkins v. Raleigh &c. R. Co., 116 N. C. 961: s. c. 21 S. E. Rep. 409; Lewis v. Delaware &c. Canal Co., 145 N. Y. 508; s. c. 65 N. Y. St. Rep. 374; 40 N. E. Rep. 248; rev'g s. c. 80 Hun (N. Y.) 192; 61 N. Y. St. Rep. 773; 30 N. Y. Supp. 28; Delaware &c. R. Co. v. Webster (Pa.), 4 Cent. Rep. 638: International &c. R. Co. v. Rhoades. 21 Tex. Civ. App. 459; s. c. 51 S. W. Rep. 517; rehearing denied 52 S. W. Rep. 979; Fort Worth &c. R. Co. v. Viney (Tex. Civ. App.), 30 S. W Rep. 252 (no off. rep.); Texas &c. R. Co. v. Urteaga (Tex. Civ. App.). 25 S. W. Rep. 1035 (no off. rep.).

423 Columbus &c. R. Co. v. Powell, 40 Ind. 37.