off, the train began to move without stopping as long as usual, and without giving the customary signals;531 where a female passenger was in the act of alighting when the train began to move, and there were a number of other passengers behind her, pressing upon her, so that she had to choose between jumping and being forced off, and she jumped, and was injured;532 where the injury was to a female passenger, who was unacquainted with the place, and the accident occurred at night, and the station lamp was not burning, and the platform was about twenty-two inches from the step of the passenger coach, and somewhat above it, and no assistance was offered to the plaintiff;533 where a female passenger had been promised the assistance of the trainmen in alighting, and was told by the porter to keep her seat until he came to help her off, but, on arriving at the station, she started out with the other passengers and proceeded forward, carrying her valise, until she reached the bottom step, when, b ing unassisted, she fell and was injured.534 Other incidental questions of fact for the jury arise where passengers are injured in the act of alighting, for example, whether a passenger, who had partly descended the steps of the car before the train started, was negligent in then stepping off 535 or whether the fact that the guard on an elevated train threw open the gate leading to the platform of the car, without previously giving any warning to indicate to passengers that they should alight, was an invitation to passengers on the platform to enter the car, and to passengers on the train to leave it,-it being a question of fact for the jury whether or not the opening of the gate was an invitation to leave.536 Where the evidence is conflicting. the question goes to the jury, provided the hypothesis of the plaintiff. if believed, would entitle him to have the question submitted to the jury, as where there was a conflict in the evidence upon the point whether the conductor ordered the passenger off, or cautioned him against getting off.537 Where there is reasonable ground for doult upon the question whether the speed of the train was so rapid as to render it clearly dangerous for the passenger to attempt to alight. that question will necessarily be for the determination of the jury.***

531 Suber v. Georgia &c. R. Co., 96 Ga. 42; s. c. 23 S. E. Rep. 387.

532 Eddy v. Still, 3 Tex. Civ. App. 346; s. c. 22 S. W. Rep. 525.

533 Green v. Middlesex &c. R. Co., 53 N. Y. Supp. 500; s. c. 31 App. Div. (N. Y.) 412 (distinguishing Lafflin v. Buffalo &c. R. Co., 106 N. Y. 136; s. c. 60 Am. Rep. 433).

534 St. Louis &c. R. Co. v. Baker, 67 Ark. 531; s. c. 55 S. W. Rep. 941.

535 Nichols v. Dubuque &c. R. Co.. 68 Iowa 732.

536 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.

537 Chicago &c. R. Co. v. Byrum, 48 Ill. App. 41.

538 Delaware &c. R. Co. v. Webster (Pa.), 4 Cent. Rep. 638.

§ 3031. Alighting while Train in Motion, in Consequence of Mistake of Passenger.-Several cases are met with where the injury which the passenger sustained in alighting was partly the consequence of his mistake as to some question of fact having to do with his safety, in which case the question of his negligence was held to be a question for the jury, provided, of course, there was evidence tending to show fault on the part of the railway company, as where a passenger, in alighting after the train had started, did not know that it was started, as it was dark, so that he could not discover the fact by ordinary care and prudence ;539 where a female passenger was injured in alighting from a train which had stopped, as she supposed, to deliver passengers but which had started again, but without her knowing it, before she made the attempt;540 where a train at night stopped before reaching the station, and a passenger, thinking that the station had been reached, attempted to alight, and was injured;541 where a passenger on a freight train supposed that the passengers were to be discharged at the first stop made by the train after the station had been announced, and, in alighting at such place, was injured, it being a question for the jury whether he was justified in that supposition.542

§ 3032. Passenger, Attempting to Alight, Thrown Down by a Sudden Jerk or Increase of Motion.-It has been held that a passenger having a ticket for a station at which it is customary for the train not to stop, but to slow its movement so as to allow the passenger to alight, will be entitled to damages if, called to the platform by the announcement of the station, he is thrown from the steps of the car and injured, his fall being caused by the sudden increase of the speed of the train where it should have been slowed or stopped.543 Turning to the correlative duty of the conductor, we find that it has been well held that if a conductor has reason to believe that any passenger who has reached his destination, though

50 Merritt v. New York &c. R. Co., 162 Mass. 326; s. c. 38 N. E. Rep. 447.

540 Floytrupe v. Boston &c. R. Co., 163 Mass. 152; s. c. 39 N. E. Rep. 797.

541 Boss v. Providence &c. R. Co., 15 R. I. 149; s. c. 1 N. Eng. Rep. 39. Similarly, see Philadelphia &c. R. Co. v. Anderson, 72 Md. 519; s. c. 20 Atl. Rep. 2; 8 L. R. A. 673.

542 Chicago &c. R. Co. v. Arnol, 144 Ill. 261; s. c. 19 L. R. A. 313; 33 N. E. Rep. 204. There was a gate upon the platform of a car, which was kept closed during passage over VOL. 3 THOMP. NEG.-32

a bridge, but some one opened it just as the train was stopping. A passenger, believing that the train had stopped, passed through the gate, stepped from the moving train, and was injured. It was held that a nonsuit was error, and that the case should go to the jury: McAlan v. New York &c. Bridge, 60 N. Y. Supp. 176; s. c. 43 App. Div. (N. Y.) 374.

543 Brashear v. Houston &c. R. Co., 47 La. An. 735; s. c. 17 South. Rep. 260; 28 L. R. A. 811.

497

dilatory, may be in the act of alighting, and he starts his train without examination or inquiry, and such passenger is thereby injured, the company will be liable.544 A passenger is not imputable with contributory negligence as matter of law where, in obedien e to the call of a trainman to "change cars," after the car, on arriving at a station, has so nearly stopped that it appears to persons of ordinary intelligence and observation to have fully stopped, he rises and walks toward the door, but is thrown down by a sudden jerk of the car.545 Where a passenger was jerked from the train by a backward movement on a dark night, it was held that the que-tion whether, in the exercise of ordinary care and prudence, the railway carrier should not have given notice to passengers desiring to alight at the station, that the train had not come to a final stop, but would back up, and also the question of contributory negligence on the part of the passenger in attempting to leave the car immediately after the brakeman had announced the station, were questions for the determination of the jury under all the circumstances disclosed by the evidence.546 Where the passenger who was injured was asleep when the train stopped at its terminal station, and, the train being at a standstill, he attempted to alight a few seconds after the other passengers had alighted, but was thrown down and injured by the train being backed with a sudden jerk without any warning as he was in the act of alighting, the question of his contributory negligence was for the jury."

547

§ 3033. Passengers Stepping into the Space between the Car and the Platform.-Whether or not a passenger, was guilty of contributory negligence precluding recovery for injuries from stepping into a space between the car and the station platform, has been held to present a question for the jury, where there were no lights showing the space, and she emerged from the car in a crowd of people, and did her best to ascertain where she was stepping, and she was not aware of the exact length of the step necessary to clear the space:54 but where the passenger does know that she must step over a space

544 Straus v. Kansas &c. R. Co., 86 Mo. 421.

545 Bartholomew v. New York &c. R. Co., 102 N. Y. 716; s. c. 3 Cent. Rep. 747.

546 Taber v. Delaware &c. R. Co., 71 N. Y. 489.

547 Daly v. Central R. Co., 26 App. Div. (N. Y.) 200; s. c. 49 N. Y. Supp. 901. Circumstances under which the same conclusion was reached

where a female passenger was injured by being thrown from the steps of the car, by a sudden backward movement of the train while she was alighting: Morgan v. Southern &c. Co., 95 Cal. 501; s. c. 30 Pac. Rep. 601.

548 Fox v. New York, 5 App. Div. (N. Y.) 349; s. c. 39 N. Y. Supp. 309; rev'g s. c. 24 N. Y. Supp. 43; 70 Hun (N. Y.) 181; 53 N. Y. St. Rep. 902.

between the car and the station platform, but neglects to look where she is stepping, or to take any precautions whatever to avoid the results of stepping into the space, she can not recover for injuries thus occasioned.5+

549

§ 3034. Alighting from Moving Train in Disregard of the Warnings of the Carrier's Servants.-The fact that, in alighting from the train while it was in motion, the passenger disregarded a warning given to him by a servant of the carrier, will undoubtedly be an evidentiary fact tending to show negligence on the part of the passenger, but will not in all cases be conclusive, as where the warning was given when it was too late for the passenger to obey it.550

§ 3035. Alighting from the Wrong Door.-It has been held that a female passenger is guilty of contributory negligence in jumping from the side door of a car, through which baggage is received, instead of using the usual door and steps provided, although the car is crowded and the conductor assists her in alighting.551 The decision seems to be untenable, for the reason that the assistance of the conductor should be regarded as condoning her mistake. On the other hand, it is not negligence as matter of law for a passenger on a railway train to leave the coach at a rear entrance, although the conductor and brakeman are at the front entrance.552

§ 3036. Negligence of Passenger must have been the Proximate Cause of the Injury.—It is scarcely necessary to recall, and to apply in this relation, the principle that the negligence of the passenger in alighting while the train is in motion will not bar a recovery of damages, if the injury was visited upon the passenger in some other manner, ascribed to the negligence of the carrier.553 For example, the negligence of a passenger, in riding upon the platform of a car, will not bar a recovery of damages for an injury visited upon him by the negligence of the company in backing the train upon him suddenly and without warning, after he has alighted from it.554 So, the negligence of a passenger or trespasser in alighting from the train while it is in motion, or in leaving it on the wrong side, will

549 Hanrahan v. Manhattan R. Co., 53 Hun (N. Y.) 420; s. c. 24 N. Y. St. Rep. 790; 6 N. Y. Supp. 395; s. c. aff'd 130 N. Y. 658.

50 Louisville &c. R. Co. v. Bean, 9 Ind. App. 240; s. c. 36 N. E. Rep. 443. Deery v. Camden &c. R. Co., 163

Pa. St. 403; s. c. 35 W. N. C. (Pa.) 475; 30 Atl. Rep. 162.

562 Pierce v. Gray, 63 Ill. App. 158. 553 Vol. I, § 216.

554 Gadsden &c. R. Co. v. Causler, 97 Ala. 235; s. c. 12 South. Rep. 439.

not bar a recovery for an injury to him to which such negligence did not in any degree contribute.555 So, where the passenger, being unacquainted with the place, and having received no direction as to the proper side of the train on which to alight, and there being nothing to indicate upon which side he should alight, got off on the wrong side in front of a passing train, and was injured,-it was held that the catastrophe was one to which his negligence, if any, did not contribute, and that he might recover damages.556

$3037. Passenger Injured in Disembarking from Ferryboat.It has been held that a female passenger upon a ferryboat is not bound to use more than ordinary care in leaving the boat, to avoid stepping into a gap left between one side of the boat and the landing stage; and is therefore not guilty of contributory negligence in stepping into such a gap, where she is nearsighted and mistakes such gap for a difference in level between the deck of the boat and the stage, and the bar preventing passengers from leaving has been removed, and the other passengers have gone on shore.557

§ 3038. Other Questions Growing out of Injuries to Passengers in Alighting. The subject of the negligence of railway carriers, in not affording adequate time and means to passengers to alight from their trains, has been considered in a former chapter;558 but some of the cases considered in this chapter exhibit such questions closely blended with the question of the contributory negligence of the passenger:-For instance, under given circumstances, whether the railway company is negligent in failing to have a light at its station. or in failing to render assistance to a female passenger, who, in stepping off in the dark, falls and is injured, the question being one of fact for a jury;559 or whether the railroad company became liable to a passenger, using due care in endeavoring to alight from its car at a station, for injuries sustained by the starting of the train, due to the manner of letting off the air in the brakes, unless there was no way to avoid letting it off in that manner, or unless it was the usual and proper method,-it being likewise a question. for the jury;560 or whether a railway carrier was guilty of negligence

555 Pennsylvania Co. v. McCaffrey, 68 Ill. App. 635.

556 Van Ostran v. New York &c. R. Co., 35 Hun (N. Y.) 590.

557 Drake v. Dartmouth, 25 Nova Scotia 177.

558 Ante, § 2860.

560

550 St. Louis &c. R. Co. v. Finley, 79 Tex. 85; s. c. 15 S. W. Rep. 266. Pomeroy v. Boston &c. R. Co. 172 Mass. 92; s. c. 51 N. E. Rep. 523: 12 Am. & Eng. Rail. Cas. (N. S. 119 (the letting off the air in the brakes caused the train to move a