.505 withstanding the advice, the command, or even the threat, of the servants of the carrier, the act is obviously dangerous, the passenger or trespasser will not be excused in attempting it, but negligence will be imputed to him. It was so held where a person boarded a freight train to go to a station at which the train did not stop, and the conductor became angry and abusive, and ordered him to jump off when the train should reach the station, but made no threat to put him off, and the passenger jumped off while the train was going at a speed of ten or twelve miles an hour, and sustained injuries;5 where, as a passenger was evidently preparing to alight from the train while it was in motion, the conductor told him to "jump with the train," meaning to jump in the direction in which the train was going, and thereby intending merely to advise as to the safest. mode of jumping, and not to advise him to jump;506 where a passenger on a freight train, who was asleep in the caboose when it reached his station, was told by the conductor, shortly after the train had passed the station, that, if he wanted to get off he must get off quickly, and he took his stand on the steps of the car ready to get off when the train should stop, and, standing there, was thrown off by a sudden jerk, which was caused by taking up the "slack" of the train;507 where a passenger found himself, on a dark night, on a wrong train running at from ten to fifteen miles an hour, and jumped therefrom at the suggestion of a trainman;508 where a passenger was informed by a trainman, after the train had started, that it was not his proper train, and that he had better get off if he did not wish to go to a place named, which was not the place of his destination, whereupon, without further advice or direction, he jumped from the train while it was moving at the rate of three or four miles an hour;509 where a passenger desired to alight at a certain place where the train was not scheduled to stop, it being merely a crossing, and the conductor slackened the speed of the train a little, but refused to stop, and told him to jump, which direction he obeyed.510 It has been held that the fact that a train is being run at a high rate of speed in violation of law, and in breach of a promise made by the engineer to a boy thirteen years old riding thereon and intending to jump off, will not render the company 505 St. Louis &c. R. Co. v. Rosenberry, 45 Ark. 256. 500 McDonald v. Boston &c. R. Co., 87 Me. 466; s. c. 32 Atl. Rep. 1010; 2 Am. & Eng. Rail. Cas. (N. S.) 293. 507 Lindsey v. Chicago &c. R. Co., 64 Iowa 407. 50% Rothstein v. Pennsylvania R. Co., 171 Pa. St. 620; s. c. 33 Atl. Rep. 379. 509 Jones v. Baltimore &c. R. Co., 4 App. (D. C.) 158; s. c. 22 Wash. L. Rep. 653. 510 Bardwell v. Mobile &c. R. Co., 63 Miss. 574. liable for an injury to the boy sustained in so jumping, he having full knowledge of the danger.511 §3029. Instances of Leaping from Moving Trains where the Recovery of Damages has been Denied.-There are isolated holdings to the effect that a street railway company is not liable for an injury to a passenger because of a failure to stop at a proper place when properly requested, where the accident is caused by the passenger's jumping from the car while it is in motion,512-especially where so to do is in violation of the known rules of the company, and enough is not said or done by the employés of the company to induce the passenger to take this course.513 A recovery of damages was denied, on the ground of contributory negligence, in the following cases:Where the conductor consented to slacken speed to allow an intending passenger to alight, but declined to bring the train to a stop 511 Howell v. Illinois &c. R. Co., 75 Miss. 242; s. c. 36 L. R. A. 545; 21 South. Rep. 746. As the conductor or guard, after announcing the last station, stood facing the door of the vestibule, which had not yet been opened, and the train was still in motion, a passenger leaned against a partition, and stood waiting a half a minute, when the guard opened the vestibule door, and stepped across to the vestibule of the other car; and the passenger, erroneously supposing the train had stopped, stepped out into the vestibule, took the rail in his right hand, passed down the steps, and thence onto the platform, and in doing so he fell, and was injured. It was held that such facts did not show a direction to the passenger such as interfered with his free agency, and diverted his attention from the danger of alighting from the train while moving. He was guilty of contributory negligence, and his complaint for damages was properly dismissed: Mearns v. Central R. Co., 163 N. Y. 108; s. c. 57 N. E. Rep. 292; rev'g s. c. 48 N. Y. Supp. 366; s. c. 23 App. Div. (N. Y.) 298. 512 North Chicago St. R. Co. v. Wrixon, 51 Ill. App. 307. 513 Calderwood v. North Birmingham St. R. Co., 96 Ala. 318; s. c. 11 South. Rep. 66. It has been held gross negligence in a passenger on a street railway to jump from the car when it is going twenty miles an hour, whether or not he knows that the car is going so fast, and although a city ordinance restricts the speed to seven miles an hour, and the conductor is silent on hearing another tell such passenger that the car is not going to stop, and that he had better get off: Masterson v. Macon City &c. R. Co., 88 Ga. 436; s. c. 14 S. E. Rep. 591. A passenger on a street car, who knew the driver and wished to smoke, went to the front platform for that purpose. A large travelling trunk prevented him from getting on the platform. and so he stood on a lower step. hanging on by the driving bar and the iron at the side of the car. He rode some distance in this way. when the car stopped, and the horses were watered. The driver then told him to go to the rear platform if he wanted to smoke. He started a minute later to do so, but. as he was stepping down and his foot was nearly on the ground, the driver let go the brake, the car started, and he was thrown down and injured. The plaintiff had abundant time to obey the direction of the driver before the car started; and even if the car had started immediately, there was nothing to indicate that, with ordinary care on his part, he might not have stepped down with perfect safety to himself. It was held that he could not recover damages from the company: Brown v. Congress &c. R. Co., 49 Mich. 153; s. c. 14 Reporter 627. because the place was not a station but merely a crossing, and, although the night was dark, and the train was running at a speed from six to twelve miles an hour, the passenger jumped, knowing that the act was dangerous;514 where the train was running at a speed which indicated that it would pass a particular station without stopping, and a boy sixteen years old, desiring to stop at the station, voluntarily alighted from the train, without being directed to do so by any employé of the company, but through the fear that he would be carried beyond his station;515 where a boy nearly fourteen years old, who was an expert in jumping on and off trains while in motion, attempted to get off a train running at the rate of twenty miles an hour;516 and in the cases noted in the margin.517 514 Bardwell v. Mobile &c. R. Co., again went to sleep, and the con63 Miss. 574. 515 Jones v. Georgia &c. R. Co., 103 Ga. 570; s. c. 29 S. E. Rep. 927. 516 Howell v. Illinois &c. R. Co., 75 Miss. 242; s. c. 36 L. R. A. 545; 21 South. Rep. 746. 517 A lame boy eight years old climbed upon an engine as it was moving slowly through a city street. The engineer at once stopped the engine with a jerk, the fireman calling to the boy to hold on. The boy either lost his hold, or jumped, and was killed. It was held that there was nothing to submit to the jury: Miles v. Atlantic &c. R. Co., 4 Hughes (U. S.) 172. A passenger on a train in the nighttime intended to get off at a particular station. After the conductor had pulled the bell cord to stop the train at that station, the passenger jumped from the train while it was going so rapidly as to throw him violently to the ground, and when the train was several hundred feet beyond his station, although he thought, from seeing the light of a lantern glimmering on the ground, that the train was going slowly enough to enable him to alight in safety: Fordyce v. Allen (Tex. Civ. App.). 26 S. W. Rep. 437 (no off. rep.). A sleeping passenger, in a caboose of a freight train, was awakened by the conductor and informed that he had reached his destination, but he went to sleep again. After the train had passed the station a short distance and had stopped at a frog, the conductor awakened him again. At that time and place, he could have alighted in safety. Nevertheless, he ductor aroused him a third time and told him to get off. The conductor then went out at the end of the caboose. The night was very dark. The conductor stood on the station platform with lantern in hand, within less than three feet of the car platform. There was no chain across the end of the car platform in the rear of the caboose, and it was not customary to have any. The train commenced backing. The passenger then walked to the end of the car, jumped off, and the cars passed over him, injuring him severely. It was held that, although the company was culpably negligent in not having sufficient lights at the station, and in not warning the passenger to wait until the train had stopped, yet his contributory negligence prevented him from recovering damages: Richmond &c. R. Co. v. Morris, 31 Gratt. (Va.) 200. A female passenger seventy years old, accompanied by her niece, started toward the door of the car before the train had stopped, but after the brakeman had taken her valise, and after her niece had started; and, while she was so proceeding, and not holding onto anything for support, she was thrown down by the stopping of the train in a way which was not unusual. It was held that her contributory negligence precluded her from recovering damages for the hurt so received. The court took the view that she should have remained in her seat until the train stopped: Chicago &c. R. Co. V. Means, 48 Ill. App. 396. That a railway company is not liable for an § 3030. Instances of Leaping from Moving Trains where the Question of Contributory Negligence Went to the Jury.-Recalling the statement of doctrine that there is no rule of law which determines whether, in a given case, a passenger or a trespasser is guilty of contributory negligence, from the mere fact of attempting to alight from a railway train in motion, we may conclude that it is a question of fact for the jury in all cases, except where the negligence is so glaring and palpable that the judge is able to say that fairminded men ought not to differ upon the question, and hence, that he, the fair-minded man on the bench, ought not to allow the twelve fair-minded men in the jury box to exercise their judgment upon it. General statements of doctrine are frequently met with in the judicial reports, to the effect that whether the act of alighting from a railway train while in motion is negligent or not, ordinarily presents a question of fact for the jury.518 From what has preceded it must be concluded that it is or is not, according to the circumstances. In the view of most courts, for a passenger to step from a car in the daytime, or when the station is well lighted and the car is moving slowly opposite the station platform, is not negligence as matter of law, but the question whether it is negligence is for the jury.519 And there are many decisions which proceed upon the proposition that it is not negligence as matter of law to jump from a slowly moving train,520-for example, from a moving injury to one who has entered its train to procure a seat for his wife, but who has not exercised ordinary care in alighting, although the company has been negligent in failing to provide a light at the place where he attempted to leave the train, or in failing to stop the train for a sufficient length of time,-see Missouri &c. R. Co. v. Miller, 8 Tex. Civ. App. 241; s. c. 27 S. W. Rep. 905. 518 Louisville &c. R. Co. v. Crunk, 119 Ind. 542; s. c. 21 N. E. Rep. 31; Raben v. Central &c. R. Co., 74 Iowa 732; s. c. 34 N. W. Rep. 621; Taylor v. Missouri &c. R. Co., 26 Mo. App. 336; International &c. R. Co. v. Satterwhite, 15 Tex. Civ. App. 102; s. c. 38 S. W. Rep. 401; Little Rock &c. R. Co. v. Atkins, 46 Ark. 423; Leslie v. Wabash &c. R. Co., 88 Mo. 50; s. c. 3 West. Rep. 824; Pennsylvania R. Co. v. Peters, 116 Pa. St. 206; s. c. 9 Atl. Rep. 317; 19 W. N. C. (Pa.) 418; Illinois &c. R. Co. v. Wittaker (Ky.), 57 S. W. Rep. 465 (no off. rep.). 519 Highland Ave. &c. R. Co. v. Winn, 93 Ala. 306; s. c. 9 South. Rep. 509; Cumberland &c. R. Co. v. Maugans, 61 Md. 53; Chicago &c. R. Co. v. Hyatt, 48 Neb. 161; s. c. 4 Am. & Eng. Rail. Cas. (N. S.) 44: 67 N. W. Rep. 8 (about five miles an hour); Chicago &c. R. Co. v. Byrum. 48 Ill. App. 41 (motion just resumed after stopping, passenger stepped off before car had gone beyond platform); Delaware &c. R. Co. v. Webster (Pa.), 4 Cent. Rep. 638 (gravity railroad, car going no faster than a man could walk past the point at which the conductor had promised to let the passenger off). 520 McDonald v. Kansas City &c. R. Co., 127 Mo. 38; s. c. 29 S. W. Rep. 848; McAlan v. New York &c. Bridge, 60 N. Y. Supp. 176; s. c. 43 App. Div. (N. Y.) 374 (very slowly moving train); Atchison &c. R. Co. v. Hughes, 55 Kan. 491; s. c. 40 Pac. Rep. 919 (attempting to alight from a very slowly moving train at the suggestion or request of the conductor). train when it has moved but forty feet from its starting point.521 In the following cases it was held that the passenger was not guilty of contributory negligence as matter of law, because of attempting to alight from a train while it was in motion:-Where, because of the fault of the company, the passenger had no choice but to leave the train while it was moving slowly, or to be carried beyond his destination, and the speed of the train was not such as to indicate danger, 522-a type of many cases;523 where the train has been negligently started without giving the passenger a reasonable time. to alight at his destination,524-a type of many other cases;525 where the passenger steps from the train before it has quite stopped opposite the station platform, such an act being negligent or not according to the circumstances;526 where a woman entered a car before the time of starting, in violation of a rule of the company, of which she claimed to have been ignorant, where there were other passengers seated therein, and the brake of the car, which was insecurely fastened, was released by a mischievous boy eight years old, and the car started down grade, with no person in charge of it, and, when it had acquired a speed of ten miles an hour, the woman leaped from it;527 where a person jumped from a car when it was moving at the rate of five miles an hour, this rate of speed not making the act negligent as matter of law;528 where a passenger was thrown from a car on the side opposite his station, just after it had passed the station without affording him an opportunity to alight, and after he had crossed to the other side of the platform, under a reasonable expectation that the train would be slowed up at a mill just beyond ;520 where an able-bodied male passenger stepped from a slowly moving train, holding a valise in one hand and a basket in the other, in broad daylight, where it was only eighteen inches from the step of the car to the station platform ;530 where a person went on board the train to assist his sister and three small children, and so informed the conductor, and, before he could get 521 Chicago &c. R. Co. v. Byrum, 153 Ill. 131; s. c. 38 N. E. Rep. 578. 522 Southern R. Co. v. Mitchell, 98 Tenn. 27; s. c. 40 S. W. Rep. 72. 523 Texas &c. R. Co. v. Bagwell, 3 Tex. Civ. App. 256; s. c. 22 S. W. Rep. 829 (passenger, a young woman, jumped off, on the advice of some one on a bright moonlight night, after the train had acquired the speed of six or eight miles an hour). 524 Southern R. Co. v. Mitchell, 98 Tenn. 27; s. c. 40 S. W. Rep. 72. 525 McSloop v. Richmond &c. R. Co., 59 Fed. Rep. 431; New York &c. R. Co. v. Coulbourn, 69 Md. 360; s. c. 1 L. R. A. 541; 18 Md. L. J. 823; 16 Atl. Rep. 208. 52% Galveston &c. R. Co. v. Smith, 59 Tex. 406. 527 Western &c. R. Co. v. Herold, 74 Md. 510; s. c. 22 Atl. Rep. 323. 529 Louisville &c. R. Co. v. Crunk, 119 Ind. 542; s. c. 21 N. E. Rep. 31. 629 Brashear v. Houston &c. R. Co., 47 La. An. 735; s. c. 17 South. Rep. 260. 530 Cumberland &c. R. Co. v. Maugans, 61 Md. 53. |