where its porter opened the door for a passenger after his station had been called twice, and said "all right," while the passenger was standing on the last step of the car, the night being dark, and he, being unable to tell whether the train was moving, stepped off and was injured,-the question being for the jury;561 or whether an elevated railway company was guilty of negligence in failing to light its stairway, where a female passenger, descending the step, felt her way until she supposed she had reached the bottom, and then stepped off and fell three or four steps, and was injured.562 §3039. Instructions in Cases of Injuries Caused by Alighting from Railway Trains while in Motion.-An instruction to the effect that if, at the time the passenger attempted to leave the train, it was running at such speed as to render it unsafe for him so to attempt, and that his effort to leave the train was the immediate, proximate cause of his injury, he can not recover, is not erroneous as requiring the jury, before finding in favor of the defendant, to find that the plaintiff attempted to leave the train when it was running at such speed as to make it unsafe and negligent to attempt to leave it while it was so moving, when nearly in the language of the defendant's answer.563 In an action for an injury to a female passenger, predicated upon negligence in not stopping the train at the station where she was to alight, it was held error to instruct the jury that if she hurriedly left the train on its stopping a second time, without waiting for the assistance of trainmen, the company was not liable; since for a female passenger to attempt to alight from the train without waiting for assistance, is not negligence per se, but presents a question for the jury under the circumstances shown in evidence." In such an action, where the main question in issue was whether the injury was caused by the sudden starting of cars after they had stopped, without giving the plaintiff a reasonable time to alight, or whether it was caused by the negligent act of the plaintiff in jumping from the foot and a half, throwing the passenger down and injuring her baby). 501 Hodges v. Southern R. Co., 120 N. C. 555; s. c. 27 S. E. Rep. 128. 562 Flagg v. Manhattan R. Co., 49 N. Y. Super. Ct. 251; s. c. aff'd 101 N. Y. 624 (mem.). A passenger on a railroad train at night, after being carried past the flag station for which his ticket called, requested the conductor to back the train up to the station, which the conductor refused to do. The passenger then got off the train, and started to walk 564 back to the station along the track, which was the only practicable way, as there was water on each side of the track, and fell through a trestle and was injured. It was held that the question of his contributory negligence was for the jury: Yazoo &c. R. Co. v. Aden, 77 Miss. 382; s. c. 27 South. Rep. 385. 563 Missouri &c. R. Co. v. McElree, 16 Tex. Civ. App. 182; s. c. 41 S. W. Rep. 843. 54 Martin v. St. Louis &c. R. Co. (Tex. Civ. App.), 56 S. W. Rep. 1011. train while it was in motion, an instruction to the effect that the plaintiff could not recover if her negligence caused or contributed to the injury, was held proper, although the word "proximately" was omitted; since the negligence of the plaintiff, if any, must have proximately contributed to the injury.565 An instruction in such an action to the effect that, if the defendant used ordinary care in stopping its train to allow the plaintiff sufficient time, by the use of ordinary diligence, to leave the train in safety, and the plaintif failed to use such diligence to leave said train as a man of ordinary prudence would have used under like circumstances, and the want of care, if any, on his part was the immediate, proximate cause of his injury, the jury should find for the defendant, was not subject to exceptions on the part of the defendant, since it was favorable to it.566 ARTICLE V. ALIGHTING AT IMPROPER OR DANGEROUS PLACE. SECTION 3041. Alighting from railway train 3042. Further of alighting at im- 3046. Alighting on wrong side of 3047. Alighting after station is called, but before train stops. 565 Craven v. Central &c. R. Co., 72 Cal. 345; s. c. 13 Pac. Rep. 878. 500 Missouri &c. R. Co. v. McElree, 16 Tex. Civ. App. 182; s. c. 41 S. W. Rep. 843. Where a passenger had jumped from a moving train at a station, it was held error to instruct the jury that, although defendant's servants had stopped the train at such a station a sufficient length of time for him to alight in safety, by the exercise of ordinary care, in order for defendant to be relieved of liability they must believe that the passenger was guilty of negligence SECTION 3048. Alighting where the station is 3050. Passenger in alighting struck 3051. Further of alighting passenger 3052. Alighting inside the turn-loop 3054. Questions of procedure in in jumping therefrom; since it does not necessarily follow that, to relieve the defendant from liability, the pas senger must have been negligent: Texas &c. R. Co. v. Atchison (Tex. Civ. App.), 54 S. W. Rep. 1075 (no off. rep.). What allegation in the petition or complaint will warrant an instruction on the question whether the train stopped at the plaintiff's station sufficiently long to give him a reasonable opportunity to alight: Houston &c. R. Co. v. Hubbard (Tex. Civ. App.), 37 S. W. Rep. 25 (no off. rep.). 3041. Alighting from Railway Train at Improper or Dangerous Place. Whether the fact of alighting from a railway train at a dangerous place will be imputed to the passenger as contributory negligence will depend in many cases upon the consideration whether he has been afforded a reasonable opportunity to alight at a safe place, or whether he has been invited, expressly or impliedly, to alight at the particular place; and even in the latter case, contributory negligence may be imputed to him for obeying such an invitation to alight, where the danger is obvious and where the act would be manifestly rash. When, by reason of the insufficiency of the station platform, or length of the train, or negligence in the operation of it, passenger cars are brought to a stand at places where there is no landing or other conveniences for getting off the train, if it is reasonable to suppose that no better opportunity will be granted for this purpose, the passenger may alight, although the position is inconvenient or slightly dangerous. If the company's servants have given the passenger an express invitation to alight, or if their conduct is such as to imply such an invitation,568 the passenger will be justified in making the attempt. But if the passenger is aware that the train is not opposite a platform, and in alighting at such a place is guilty of a reckless indifference to his own safety, he can not recover damages from the carrier for injuries received.569 Contribu 567 Foy v. London &c. R. Co., 18 C. B. (N. S.) 225. 568 Robson v. North-Eastern R. Co., L. R. 10 Q. B. 271; Bridges v. London &c. R. Co., L. R. 6 Q. B. 377; s. c. 40 L. J. (Q. B.) 188; L. R. 7 H. L. 213; 43 L. J. (Q. B.) 151; 23 Week. Rep. 62; 30 L. T. (N. S.) 844; Whittaker v. Manchester &c. R. Co., L. R. 5 C. P. 464, note (3); Petty v. Great Western R. Co., L. R. 5 C. P. 461, note (1); Thompson v. Belfast &c. R. Co., Irish Rep. 5 C. L. 517; Scott v. Dublin &c. R. Co., 11 Irish C. L. (N. S.) 377; Nicholls v. Great Southern R. Co., Irish Rep. 7 C. L. 40; Weller v. London &c. R. Co., L. R. 9 C. P. 126; s. c. 43 L. J. (C. P.) 137; 22 Week. Rep. 302; 29 L. T. (N. S.) 888; Praeger v. Bristol &c. R. Co. (MS.), 24 L. T. (N. S.) 105 (stated at length in L. R. 7 C. P. 323); Cockle v. London &c. R. Co., L. R. 7 C. P. 321; s. c. 41 L. J. (C. P.) 140; L. R. 5 C. P. 457; 39 L. J. (C. P.) 226; 27 L. T. (N. S.) 320; 20 Week. Rep. 754; Delamatyr v. Milwaukee &c. R. Co., 24 Wis. 578; Evansville &c. R. Co. v. Duncan, 28 567 Ind. 441; Taber v. Delaware &c. R. Co., 71 N. Y. 489; Central R. Co. v. Van Horn, 38 N. J. L. 133; Columbus &c. R. Co. v. Farrell, 31 Ind. 408. The decisions in Siner v. Great Western R. Co., L. R. 3 Exch. 150; s. c. L. R. 4 Exch. 117, and Pabst v. Baltimore &c. R. Co., 2 McArthur (D. C.) 42, may be regarded as quite out of line with authority, and inconsistent with later adjudications on this subject. 589 Harrold v. Great Western R. Co., 14 L. T. (N. S.) 440; Lewis v. London &c. R. Co., L. R. 9 Q. B. 66; s. c. 43 L. J. (Q. B.) 8; Evansville &c. R. Co. v. Duncan, 28 Ind. 441. If a railroad train is stopped at night merely for the purpose of allowing a train which is expected from the opposite direction to pass by, without notice given by the servants of the company to passengers that they may leave the cars, one who leaves the cars and walks into an open cattle-guard, and receives a personal injury, can not maintain an action against the company to recover damages therefor; and it is immaterial tory negligence will not be imputed, as matter of law, to a passenger because of his getting off the train at a street crossing, where it comes to a full stop and remains standing, for the purpose of reaching his home sooner, although such crossing is not a regular stopping place of the train;570 nor because of his alighting at a crossing two hundred yards distant from that at which he is in the habit of alighting, where he has been previously carried to such crossing and has alighted thereat, and the ground is level and smooth, and there is no notice or warning to him not to alight;571 nor because of his alighting from an electrio car before the car has reached its usual stopping place, where it has come to a full stop, where no warning not to alight is given, where the appearance of the surroundings is such as to indicate that the stop is made for that purpose, and where substantially all the passengers alight;52 nor because a passenger on a railway train attempted to alight at a point at which it had stopped, which was a few feet from the station platform, where the evidence tended to show that the train usually stopped at that place, and that it was customary for passengers to get off there, of which custom the passenger had knowedge.573 § 3042. Further of Alighting at Improper or Dangerous Place. If a female passenger erroneously attempts to alight from the train when it stops before crossing another railroad, in consequence of the fact that she is uncertain as to whether the station, announced as the next station, has been reached, and is injured while making the attempt, she will be imputable with contributory negligence, although no call is made as to the whereabouts of the train at the time when it stops.574 On the other hand, if the car in which the passenger is riding is stopped at the station which is the passenger's destination, but not opposite the platform, and at a place where there is not sufficient light, so that the passenger, in endeavoring to 570 Chicago &c. R. Co. v. Gomes, 46 Ill. App. 255. 571 Gadsden &c. R. Co. v. Causler. 97 Ala. 235; s. c. 12 South. Rep. 439. 572 Poole v. Consolidated &c. R. Co.. 100 Mich. 379; s. c. 59 N. W. Rep. 390. that he was misinformed by some way passenger killed while alightperson not in the employment of the ing, see Chicago &c. R. Co. v. Bonicompany that he must go and see field, 104 Ill. 223. to having his baggage passed at a custom-house, supposed to have been reached by the train, or that the train was near a passenger station, which was not the place of his destination: Frost v. Grand Trunk R. Co., 10 Allen (Mass.) 387. That the question of comparative negligence was for the jury in Illinois, under the abandoned doctrine on that subject (Vol. I, § 283), in case of a rail 573 Carroll v. Burleigh, 15 Wash. 208; s. c. 46 Pac. Rep. 232. 574 Minock v. Detroit &c. R. Co., 97 Mich. 425; s. c. 56 N. W. Rep. 789. get off in the exercise of due care, is injured, he will not be precluded from recovering damages by the irrelevant circumstance that he went out upon the car platform before the train had come to a stop.575 Where a passenger, after his station has been called, is directed to get off, he has the right to assume that the place designated for him to alight is reasonably safe and suitable, although there is no light, and no assistance is offered him.576 So, a passenger is not guilty of contributory negligence precluding recovery for injuries from stepping from the steps of the car at night into a ditch, in assuming that the car was at the platform of the station, when, owing to the snow covering the ground, there was nothing to inform him to the contrary.577 When a train arrives at the depot and stops opposite the platform, it is the proper place for a passenger to alight, unless informed to the contrary.578 But when the train is so stopped that a female passenger can alight on the platform only by going forward through the smoking car, she is not imputable with negligence in getting off from the rear end of the car in which she has been riding.57 576 McDonald v. Illinois &c. R. Co., 88 Iowa 345; s. c. 55 N. W. Rep. 102. 576 East Tennessee &c. R. Co. v. Conner, 15 Lea (Tenn.) 254.' Chesapeake &c. R. Co. v. Friel, 19 Ky. L. Rep. 152; s. c. 39 S. W. Rep. 704 (not to be off. rep.). 578 Leslie v. Wabash &c. R. Co., 88 Mo. 50; s. c. 3 West. Rep. 824. 579 Cartwright v. Chicago &c. R. Co., 52 Mich. 606; s. c. 50 Am. Rep. 274. It has been held that a railroad company is not liable for injuries to a passenger received in alighting from a train while in motion, at an unsafe place, merely because such place was not the place which he had a right to assume it was from a statement of an employé: Durham v. Louisville &c. R. Co., 16 Ky. L. Rep. 757; s. c. 29 S. W. Rep. 737 (not to be off. rep.). It has been held a question of fact for the jury whether an elevated railway passenger was guilty of contributory negligence in stepping off the train at a point where he had never been before, in the nighttime, without making any investigation as to the safety of the place where he was stepping, there being evidence that he was in a hurry to catch a boat, and that, finding no obstructions upon entering the car platform, he stepped off on the same side on which he had observed passengers get off at the preceding station: Kentucky &c. |