the regulations of the company in leaving the car on the wrong side, even without the excuse of a cogent necessity, will not, in all cases, as matter of law, debar him from recovering damages, if he sustains an injury while so alighting and making his egress from the grounds of the carrier; since there may be circumstances which will justify, or at least excuse, this course of action, but the question will, in many cases, go to the jury.594 But, as a general rule, a passenger who elects to get off on the wrong side of the train, where he either knows or has reasonable opportunity of discovering which is the proper side on which to alight, takes upon himself the risks of any injury which may happen to him in consequence of his so alighting, not imputable to the subsequent negligence or misconduct of the servants of the carrier after discovering his exposed situation.595 Contributory negligence has been imputed to a passenger who, knowing that the station platform was well lighted and safe, got off at night on the opposite side for the purpose of saving a short walk, and was injured by reason of stumbling in the darkness,-the company not being required to have that side of its train lighted, though the plaintiff and other passengers had previously entered and left the cars by that side;596 to a passenger who was injured by falling into a ditch when alighting from a railroad train, on the opposite side from the depot building and the platform provided by the company for egress from and ingress to its trains ;597 to a passenger who was injured in consequence of having knowingly alighted on the wrong side of the train, on a very dark night, and before it came to a full stop;598 to a passenger who, in getting off a train at a stopping place where there was no platform, stepped down, not on the side where passengers usually alight, but on the other side, where there was another track, and was injured by a passing train which he could not have failed to see had he used his eyes, and where his only reason for getting down on that side was that it was a more level surface and an easier place to get down.599 When

594 Chicago &c. R. Co. v. Lowell, 151 U. S. 209; s. c. 38 L. ed. 131; 14 Sup. Ct. Rep. 281; McQuilken v. Central &c. R. Co., 64 Cal. 463; Robostelli v. New York &c. R. Co., 33 Fed. Rep. 796.

505 Louisville &c. R. Co. v. Ricketts (Ky.), 52 S. W. Rep. 939 (not to be off. rep.) (passenger left train at night on side opposite side platform, where there was no light, knowing that it would soon be in motion, and stumbled and fell under it, as it moved out).

***Louisville &c. R. Co. v. Ricketts,

93 Ky. 116; s. c. 14 Ky. L. Rep. 19; 19 S. W. Rep. 182.

597 Drake v. Pennsylvania R. Co., 137 Pa. St. 352; s. c. 27 W. N. C. (Pa.) 417; 21 Pitts. L. J. (N. S.) 432; 48 Phila. Leg. Int. 315; 20 Atl. Rep. 994.

598 Hughlett v. Louisville &c. R. Co., 15 Ky. L. Rep. 178; s. c. 22 S. W. Rep. 551.

500 Morgan v. Camden &c. R. Co. (Pa.), 23 W. N. C. (Pa.) 189; S. c. 16 Atl. Rep. 353. And to an intoxicated passenger who got off on the wrong side of the car at midnight

a railroad company has provided a sufficient platform for the egress of passengers from its cars, it is not liable for injuries to a passenger, sustained in consequence of his voluntarily leaving them on the opposite side, and stepping on the other track, instead of the platform. By such action, it would seem, the individual terminates the relation of carrier and passenger existing between himself and the company, and thereby becomes responsible for the result of his negligence and folly. Moreover, it is error to admit evidence of a custom of passengers of getting out of the cars upon the track, in preference to the platform provided for their exit. There should be some proof of an existing necessity for passengers leaving a train in this manner, to excuse them from negligence and the consequences of it. Said Thompson, J., in a leading cases upon this subject: "A voluntary disregard of regulations, providing for their safe exit by the platform, was a disregard of their obligations to the company; and if this were so, the plaintiffs ought not to recover. We hold, on these principles, that the company's liability could not be fixed for the injury consequent on a choice of a passenger, in disregard of the provisions made by them for his safety and convenience. It was, we think, error in the court to submit the question of the rights of the parties to leave the cars at either side, in the absence of proof of a justifying necessity in doing so. It was not negligence on the part of the company that they did not, hy force, or barriers, prevent the parties from leaving at the wrong side. People are not to be treated like cattle; they are presumed to act reasonably in all given contingencies, and the company have no reason to expect anything else in this case."601

§ 3047. Alighting after Station is Called, but before Train Stops.A passenger upon a railway train who, upon the calling out of the name of a station, with the surroundings of which he is familiar.

where there was no platform, the train having stopped on a bridge, and he fell off the bridge and was killed: Pastoris v. Baltimore &c. R. Co., 1 Pa. Adv. R. 795; s. c. 24 Atl. Rep. 283.

000 Pennsylvania R. Co. v. Zebe, 33 Pa. St. 318; s. c. 37 Pa. St. 420.

601 For a case in which there was an "existing necessity" for getting out on the wrong side of a train, in consequence of which the passengers received injuries, for which the railroad company was held responsible, see Keller v. New York &c. R. Co., 24 How. Pr. (N. Y.) 172. Where a passenger leaving a train

at night left on the side opposite the platform, where there was no light, by reason of which he stumbled and fell under the train as it moved out, it was error to give i structions presenting the issue as to whether the platform was sufficiently lighted to be entirely safe: the material question as to the lighting of the platform being whether there was sufficient light to enable a person exercising ordinary prudence to know that the platform was on that side: Louisville &c. R. Co. v. Ricketts (Ky.), 52 S. W. Rep. 939 (no off. rep.).

goes upon the steps and jumps off, knowing the train to be in motion, without any lights or landmarks to indicate a station, or any physical fact to suggest that the train has reached the station,is guilty of negligence which will prevent his recovery for the injuries thereby sustained.602

§ 3048. Alighting where the Station is Called, but the Train Stops before Reaching It.-We have already had occasion to notice the general conclusion of the courts, that where the name of the station is called on approaching it, and the train soon afterwards stops without any warning being given to the passengers that it has not arrived at the station, this is tantamount to an invitation to them to alight; so that if they attempt to alight, and, while in the exercise of reasonable care, are injured in so doing, they have an action for damages against the carrier, unless they know, or, by a reasonable exercise of their faculties, might discover that the train has not stopped to discharge passengers.603 But, as it is frequently necessary under such circumstances to stop the train before reaching the station, in order to clear the track of other trains, or for other reasons, the passengers are not justified in attempting to alight as soon as the train stops after the station has been announced, without exercising their faculties for the purpose of ascertaining whether it has arrived at the station. And if, without so exercising his faculties, a passenger is injured in attempting to alight, he will be precluded from recovering damages on the ground of contributory negligence, and this is especially true where all the surroundings indicate that the place at which the train has stopped is not the proper place for alight

ing. 605

604

$8049. Crawling Between Two Cars of a Freight Train in Making Exit from Passenger Train.-Where a passenger, in attempting to make his exit from the passenger train, at a small station, found his way between the train and the station blocked by a long train of

602 East Tennessee &c. R. Co. v. Holmes, 97 Ala. 332; s. c. 12 South. Rep. 286.

603 Hooks v. Alabama &c. R. Co., 73 Miss. 145; s. c. 18 South. Rep. 925; Pittsburgh &c. R. Co. v. Martin, 2 Ohio N. P. 353; s. c. 3 Ohio Dec. 493.

Minock v. Detroit &c. R. Co., 97 Mich. 425; s. c. 56 N. W. Rep. 780; Barry v. Boston &c. R. Co., 172 Mass. 109; s. c. 12 Am. & Eng. Rail. Cas. (N. S.) 245; 51 N. E. Rep. 518. 605 Smith v. Georgia &c. R. Co., 88

VOL. 3 THOMP. NEG.-33

Ala. 538; s. c. 7 L. R. A. 323; 41 Am. & Eng. Rail. Cas. 143; 7 South. Rep. 119. Whether a passenger seventeen years old, on a railroad train, was negligent in alighting upon the stopping of the train immediately after the station had been called by the conductor, without first assuring himself that the station had been reached or that the place was safe, was held a question for the jury: Miller v. East Tennessee &c. R. Co., 93 Ga. 630; s. c. 21 S. E. Rep. 153.

513

freight cars standing on a side track, and attempted to crawl through them, but was not seen by the men in charge of the freight train, and the train was started up without giving the proper signals, and he was killed, it was held that there could be no recovery of damages for his death.606

§ 3050. Passenger in Alighting Struck by Engine or Train on Another Track.607. -It seems perfectly clear, unless we are to exclude all conceptions of justice and humanity in cases where railroad companies are parties, that when a railway passenger train stops opposite a station, with intervening tracks between the train and the station house, the company is under a duty of refraining from moving trains on such intervening tracks until the passengers on the train which has stopped have had a reasonable opportunity to alight, and to make their way to the station house. If the company is under this duty, it reasonably follows that passengers have the right to expect that it will perform it, and that a passenger is not guilty of contributory negligence, as matter of law, because he fails, before leaving the train, to look or listen for an approaching train on an intervening track.608 The hurry, crowding and confusion which almost always attend the act of passengers in alighting from a railway train, together with the confusing noises which assail their ears where there are other trains moving in the yards of the same station, should obviously be taken into consideration in determining the question whether they are guilty of contributory negligence in placing themselves 'in front of moving trains while endeavoring to find their way out of the grounds of the carrier; hence, contributory negligence will not be lightly attributed to them as matter of law, but the question is generally left to the jury.609 Accordingly, where a railway passenger alighted from a train on the main track, and then crossed a switch track to the station, and then walked to the end of the station platform, where he found himself obliged, in consequence of an obstruction, to step on the ends of the cross-ties of a side track, in which position he was struck by a train, the approach of which was unknown to him, and which he could not hear because of the escape of steam from another engine, he was held not guilty of contributory negligence as matter of law.610

008 Memphis &c. R. Co. v. Copland, leans &c. R. Co., 51 La. An. 146; s. c. 61 Ala. 376.

607 This section is cited in §§ 2886, 3045.

608 Philadelphia &c. R. Co. v. Anderson, 72 Md. 519; s. c. 8 L. R. A. 673; 20 Atl. Rep. 2; Terry v. Jewett, 78 N. Y. 338; Conway v. New Or

5 Am. Neg. Rep. 354; 24 South. Rep. 780 (struck by an electric car from behind).

600 Union &c. R. Co. v. Sue, 25 Neb. 773; s. c. 41 N. W. Rep. 801.

610 Sanchez v. San Antonio &c. R. Co., 3 Tex. Civ. App. 89; s. c. 22 S.

§ 3051. Further of Alighting Passenger being Run Over on Another Track.1-Nor is he guilty of contributory negligence, as matter of law, precluding a recovery for his death, in alighting from the train, when it has stopped at or near a street crossing on the side opposite from the station, if he is struck and killed by a train approaching on an adjacent track, in violation of a rule of the company, which requires a train approaching a station where a train is discharging passengers, to stop,-provided it is customary for passengers to alight on that side of the train, and they are not warned by the servants of the company not to do so.612 Where a passenger is ejected from a railroad train, irrespective of the question of the rightfulness of his being ejected, it is a just conclusion that he is not at liberty to walk upon the track for a greater distance than is absolutely necessary to enable him to reach a position of safety, but that he is bound to leave the track by any prudent means, although there is no public road in good travelling condition.613 Contributory negligence has been ascribed to the act of a passenger who, without looking or listening for approaching trains, leaves his train voluntarily while it is in motion and before it is time to stop, and is run against by an engine following his train, on a parallel track;614 and to the

W. Rep. 242. One court has, however, held that a passenger on a railway train has no right to assume that a train will not pass on another track while the train on which he came into the station is discharging passengers, and can not recover for personal injuries sustained by being struck by such a train, where he gets off between the two tracks and attempts to cross one of them, and is struck by an approaching train, which he can easily see if he looks, before attempting to cross: Connolly v. New York &c. R. Co., 158 Mass. 8; s. c. 32 N. E. Rep. 937.

61 This section is cited in § 2886. 612 Pennsylvania Co. v. McCaffrey, 173 Ill. 169; s. c. 50 N. E. Rep. 713; 5 Det. L. N., No. 23; 3 Chic. L. J. Wkly. 399; aff'g s. c. 68 Ill. App. 635. In an action by a passenger against a railway carrier to recover for injuries sustained by falling off a poorly-lighted depot platform, an instruction that it was the duty of the passengers to exercise such attention to a notice given to passengers not to leave the train at a certain place "as a passenger of ordinary attention would have done,"

was held erroneous and misleading: Texas &c. R. Co. v. Taylor (Tex. Civ. App.), 58 S. W. Rep. 166.

613 Ham v. Delaware &c. Co., 142 Pa. St. 617; s. c. 21 Atl. Rep. 1012. It has been held that a railroad company is not liable for the killing, by a passing train, of an intoxicated passenger ejected from another train for refusing to pay fare and for misconduct, at a place with which he was familiar and where with ordinary prudence he would have been safe, when he was not so drunk as to be unconscious of the peril attending the passing of trains, or unable to take care of himself: Louisville &c. R. Co. v. Johnson, 92 Ala. 204; s. c. 9 South. Rep. 269.

614 Dewald v. Kansas City &c. R. Co., 44 Kan. 586. Another court has held that a passenger alighting from a railroad train at a street crossing which is not a regular stoppingplace, but at which the train has come to a full stop, is not guilty of negligence per se, in stepping upon a track upon which freight cars are moving, where he is almost directly in their line, and their motion is slow, and there is no other signal of their approach, and he may reason