Commentaries on the Law of Negligence in All Relations

would stop; but he has been promised that the train will stop at the particular station, and is justified in making proper preparations to leave the car there.476 On the other hand, if the train is stopped for a sufficient length of time to enable the passenger conveniently to alight, and, without any fault of the company's servants, he fails to do so, and the conductor, not knowing or having reason to suspect that he is in the act of alighting, causes the train to start while he is so alighting, the company will not be liable.477

§ 3023. Where the Train Begins to Move While the Passenger is Alighting.—If the train is not stopped at the station for a sufficient length of time to enable the passenger, by the use of reasonable expedition, to get off before it is again started, and the passenger attempts to get off while the train is stationary, and it is started while he is in the act of alighting, and, while proceeding with ordinary care, he is thereby thrown down and hurt, he may recover damages,478 especially where the car is started without warning and with a sudden jerk.479 In such cases the question of his negligence will be for the jury.480 This is especially true where the passenger makes no further conscious attempt to alight after the train begins to move.481 On this subject it has been reasoned that where the train begins to move before the passenger has time to get off conveniently at his station, it is a circumstance which would tend to disturb and hurry the passenger; and, although the motion of the train may be such as to indicate danger, yet when the passenger is invited to alight,

476 Treat v. Boston &c. R. Co., 131 Mass. 377. A statute of Nebraska (Neb. Comp. Stat., ch. 72, art. 1, § 3) declares every railroad company liable for damages to passengers being transported, except where the injury arises from the criminal negligence of the person injured. It is not criminal negligence, within the meaning of this statute, for a passenger to jump from a moving train, under all circumstances; but it is so where the circumstances render the act obviously and necessarily perilous, and exhibit on the part of the passenger a willful disregard of the danger which he incurs,-in which case he can not recover damages from the company: Chicago &c. R. Co. v. Landauer, 36 Neb. 642; s. c. 54 N. W. Rep. 976; 54 Am. & Eng. Rail. Cas. 640.

ATT Ante, §§ 2872, 2873; Straus v. Kansas City &c. R. Co., 75 Mo. 185.

478 Straus v. Kansas City &c. R. Co., 75 Mo. 185; Swigert v. Hannibal &c. R. Co., 75 Mo. 475; Strand v. Chicago &c. R. Co., 64 Mich. 216; s. c. 7 West. Rep. 470; Smitson v. Southern &c. R. Co, 37 Or. 74; s. c. 60 Pac. Rep. 907.

479 Nance v. Carolina &c. R. Co., 94 N. C. 619.

480 Nichols v. Dubuque &c. R. Co., 68 Iowa 732; Louisville &c. R. Co. v. Eakins, 20 Ky. L. Rep. 736, 933; s. c. 45 S. W. Rep. 529 (majority opinion); 46 S. W. Rep. 496 (former dissenting opinion); 47 S. W. Rep. 872 (dissenting opinion); Chicago &c. R. Co. v. Clausen, 70 Ill. App. 550; s. c. aff'd 173 Ill. 100; 50 N. E. Rep. 680; Illinois &c. R. Co. v. Taylor, 46 Ill. App. 141 (stout woman sixty years old).

461 Leggett v. Western &c. R. Co., 143 Pa. St. 39; s. c. 28 W. N. C. (Pa.) 236; 21 Atl. Rep. 996.

vitation or assurance from the conductor that it was safe to do so,-. this being held negligence per se.471

§ 3022. Where the Train does not Stop Long Enough to Enable the Passenger to Get Off.-It must be concluded, from many of the foregoing decisions, that where the train does not stop long enough to enable the passenger, exercising ordinary care and diligence, to alight in safety, and the passenger is injured in attempting to alight, the company will be liable to the passenger, he proceeding with reasonable care.472 For example, where the facts tend to show that the train stopped but fifteen seconds at the place where a female passenger was to alight, and, before she had time to get off, started suddenly, whereby she was injured, the court could not say, as matter of law, that she was negligent in not accomplishing the feat of alighting within that time.73 Another court has reasoned that it is not an act of contributory negligence, as a matter of law, for a passenger to jump from the steps of a car while the train is leaving the station, where it has not stopped a reasonable time to allow the passenger to get off, and where an ordinarily cautious, careful and prudent person would not apprehend danger from the act. One court has reasoned that a railroad company whose servants move a train before a passenger thereon, who is entitled to leave at a stopping place, has had a reasonable time to alight, and while he is in the act of leaving the train, thereby gives him an implied invitation to alight while it is moving, and a compliance by him therewith is not negligence per se, unless the speed or some other circumstance makes it manifestly dangerous.475 Another court has reasoned that where the train does not come to a full stop at the station at which the passenger is entitled to get off, and he nevertheless attempts to alight, and, owing to a great crowd upon the cars and platforms, is pushed or falls off and receives an injury, a case is made out which ought to go to a jury. Here, the passenger is not in the position of one who has voluntarily assumed an exposed position, not intended for passengers, or who has attempted to alight from the train without waiting for it to stop, knowing, or having reason to believe, that it

471 England v. Boston &c. R. Co., 153 Mass. 490; s. c. 27 N. E. Rep. 1. For an example of an insufficient complaint for an injury of this kind, under the rule in Indiana (abolished by Burns' Rev. Stat. Ind. 1901, § 359a; Ind. Act 1899, p. 58), which required the plaintiff to negative contributory negligence,-see Cíncinnati &c. R. Co. v. Peters, 80 Ind. 168.

472 Chicago &c. R. Co. v. Byrum, 153 Ill. 131; s. c. 38 N. E. Rep. 578.

473 Smitson v. Southern Pac. R. Co., 37 Or. 74; s. c. 60 Pac. Rep. 907.

474 Carr v. Eel River &c. R. Co., 98 Cal. 366; s. c. 21 L. R. A. 354, and note; 33 Pac. Rep. 213.

475 Louisville &c. R. Co. v. Stacker, 86 Tenn. 343; s. c. 6 S. W. Rep. 737.

§ 3023. Where the Train Begins to Move While the Passenger is Alighting. If the train is not stopped at the station for a sufficient length of time to enable the passenger, by the use of reasonable expedition, to get off before it is again started, and the passenger attempts to get off while the train is stationary, and it is started while he is in the act of alighting, and, while proceeding with ordinary care, he is thereby thrown down and hurt, he may recover damages, 478 especially where the car is started without warning and with a sudden jerk. 479 In such cases the question of his negligence will be for the jury. This is especially true where the passenger makes no further conscious attempt to alight after the train begins to move.481 On this subject it has been reasoned that where the train begins to move before the passenger has time to get off conveniently at his station, it is a circumstance which would tend to disturb and hurry the passenger; and, although the motion of the train may be such as to indicate danger, yet when the passenger is invited to alight,

480

476 Treat v. Boston &c. R. Co., 131 Mass. 377. A statute of Nebraska (Neb. Comp. Stat., ch. 72, art. 1, § 3) declares every railroad company liable for damages to passengers being transported, except where the injury arises from the criminal negligence of the person injured. It is not criminal negligence, within the meaning of this statute, for a passenger to jump from a moving train, under all circumstances; but it is so where the circumstances render the act obviously and necessarily peril ous, and exhibit on the part of the passenger a willful disregard of the danger which he incurs.-in which case he can not recover damages from the company: Chicago &c. R. Co. v. Landauer, 36 Neb. 642; s. c. 54 N. W. Rep. 976; 54 Am. & Eng. Rail. Cas. 640.

Ante, §§ 2872, 2873; Straus v. Kansas City &c. R. Co., 75 Mo. 185.

479 Nance v. Carolina &c. R. Co., 94 N. C. 619.

481 Leggett v. Western &c. R. Co., 143 Pa. St. 39; s. c. 28 W. N. C. (Pa.) 236; 21 Atl. Rep. 996.

483

182

and is proceeding to do so, he may reasonably assume it to be safe, unless his senses tell him plainly to the contrary. The question of contributory negligence in such a case should be submitted to the jury. Nor is it negligence per se for a passenger to alight from a train after it has stopped and he has been invited to alight,—especially where the brakeman or conductor stands upon the ground ready to assist him, though while he is alighting the train again starts, unless the speed is such that the danger is obvious.483 In like manner, it has been held that a passenger on a railway train who has arisen from her seat to alight from the train after it has come to a stop at her station, is not guilty of contributory negligence in continuing her progress toward the door after the train has again begun to move.484 But if the railroad company stops the train long enough for the passenger, by the exercise of reasonable diligence, to alight in safety, the company will not necessarily be liable to him for an injury visited upon him by starting the train while he is in the act of alighting, where the servants of the company do not know of his perilous position, and have no reason to suspect it." A railroad brakeman announced a station, and shortly afterwards the train stopped, but stopped short of the station, and in the dark. The plaintiff, supposing he had reached his destination, got off as soon as he could, but after the train had slowly started again, whereby he fell and was injured. It was held that the company was liable."

482 Strand v. Chicago &c. R. Co., 64 Mich. 216; s. c. 7 West. Rep. 470.

483 McCaslin v. Lake Shore &c. R. Co., 93 Mich. 553; s. c. 53 N. W. Rep. 724; 52 Am. & Eng. Rail. Cas. 290.

484 Madden v. Missouri &c. R. Co., 50 Mo. App. 666.

485 Clotworthy v. Hannibal &c. R. Co., 80 Mo. 220.

480 Memphis &c. R. Co. v. Stringfellow, 44 Ark. 322; s. c. 51 Am. Rep. 598. In a distressing case, it appeared that a little girl under five years of age, with an older girl about the same size, an invalid, went on board a train of cars, without anything wherewith to pay their fare. No adult accompanied them, and no notice was given to the railroad employés to take charge of them. When they reached their place of destination they delayed getting off until the train had started, and, in attempting then to alight, the younger girl fell and was run over. There was no negligence on the part of the company. It was held that no action could be

456

maintained for damages: Atchison &c. R. Co. v. Flynn, 24 Kan. 627. Where the plaintiff alleges that, at the moment of stepping off a car. the defendant company caused the motion of the cars to be suddenly and greatly accelerated, he is not bound to plead what agent or employé, or what acts of such agent, caused such acceleration: Louisville &c. R. Co. v. Crunk, 119 Ind. 542; s. c. 21 N. E. Rep. 31. But it has been held that a female passenger who, upon going with heavy bundles upon a car platform to alight at her station, and seeing that the car has started without giving her time to get off, goes down the steps and jumps off on to the station platform and is injured, is guilty of such contributory negligence as will prevent a recovery, although her ac tion is caused by fear that she will be carried beyond her station.-the court taking the view that she ough to remain on the car, and, if damaged by being carried beyond, to sue the company therefor: Toledo &c.

$ 3024. Illustrative Holdings.-Where the evidence was conflicting as to the circumstances under which the plaintiff, an aged lady, attempted to alight from the defendants' passenger train at the station, the plaintiff's evidence showing that the train did not stop for a sufficient time to enable her to get off before it started, that she commenced to get off while it was at rest, and that it started while she was in the act of getting off, throwing her down and injuring her; and the defendant's evidence tending to show that the train stopped a sufficient length of time to enable her to get off, and that she did not avail herself of this opportunity, but attempted to get off after it had started, no question seems to have been made about the propriety of sending the case to the jury, and it was held proper to instruct them that it is the duty of railway carriers of passengers "to stop long enough to give passengers time to leave the train in safety;" that "this rule does not require them to wait an unusual time to enable sick or diseased persons to get off, unless they have notice or knowledge of the condition of such persons; but, if there is such a passenger, and his condition is known to them, they are required to allow a reasonable time for such person to safely reach the platform or landing place." It is said in this case that "the exact length of time to be given must depend very largely upon circumstances. For instance, a longer time would be required when there are many passengers to alight than when there are but few; in a dark night, with the landing place badly lighted, than when there is full light; at a difficult place to alight, than where it is easy. And as railroad companies usually carry, not merely the vigorous and active, but also those who from age or extreme youth are slower in their movements than vigorous and active persons, the time of stopping is not to be measured by the time in which the latter may make their exit from the cars, but by the time in which the other class may, using diligence, but without hurry and confusion, alight. Those in charge of the trains are bound to presume that there may be such persons in the cars, and unless they know there are not, they have no right to start the train until they have waited long enough to allow such persons to alight; nor even after waiting a reasonable time for such persons to get off have they the right to start the trains without using reasonable care to ascertain if there are such persons in the act of getting off. It certainly would not be permissible for them to be so reckless of the lives and limbs of passengers, as to start the trains when they know, or with reasonable care might know,

R. Co. v. Wingate, 143 Ind. 125; s. c. 143 Ind. 134; s. c. 42 N. E. Rep. 477. 37 N. E. Rep. 274; rehearing denied,

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Commentaries on the Law of Negligence in All Relations: (including a ...