act of a passenger who, on leaving a train at a station, attempts to cross the tracks by a place planked over for the use of the employés, instead of taking an overhead bridge provided for passengers, and who, in so doing, is injured by a train running at a moderate rate of speed, which he could have seen when sixty feet away.615 §3052. Alighting Inside the Turn-Loop of an Electric Railway.It is not negligence, as matter of law, for a passenger on an electric car, to alight on the inside of a loop used for turning the car around without reversing or switching, where such passenger has previously been helped off the car by the conductor inside the loop, and the car is so constructed that the passengers may alight from either side, and no warning or notice is given to the passengers to step off only on the outside of the loop, and the cars are crowded with passengers, so that as soon as some alight others take their place.616 § 3053. Conduct of Passenger after Leaving Train.-Contributory negligence is not imputable, as matter of law, to a woman who is put off a train at a regular station where there is no station house except a box car, from the fact that she walks back a distance of four miles to the station from which she started, and is injured by exposure to a storm.617 But contributory negligence is imputed to a passenger, as matter of law, who, in going from the train at a meal station to the eating-house, passes so close to the baggage car as to be injured by a trunk falling on his foot, which is being discharged from the car, where the circumstances are such as fully to apprise the passenger of the risk, even though the route which he takes has been taken by other passengers, the company having provided another route, free from obstruction and danger, and equally convenient and direct.618 ably take the train to be standing: Chicago &c. R. Co. v. Gomes, 46 Ill. App. 255. 615 Flanagan v. Philadelphia &c. R. Co., 181 Pa. St. 237; s. c. 40 W. N. C. (Pa.) 273; 37 Atl. Rep. 341. Contributory negligence has been ascribed, as matter of law, to the act of a passenger who attempted to pass from his car to the station, a distance of several hundred feet along an adjoining track, and who, in so doing, was run upon by a train which he knew to be about due, and which he could have seen but for a puff of smoke which got into his eyes, and which he could have heard but for the noise of a coal chute above the track,-the track being shut in on one side by the train which he had left, and on the other side, by buildings, leaving but a narrow space on either side: Mills v. New York &c. R. Co., 5 App. Div. (N. Y.) 11; s. c. 39 N. Y. Supp. 280. 616 Poole v. Consolidated Street R. Co., 100 Mich. 379; s. c. 59 N. W. Rep. 390. 617 Malone v. Pittsburgh &c. R. Co.. 152 Pa. St. 390; s. c. 31 W. N. C. (Pa.) 407; 23 Pitts. L. J. (N. S.) 467; 25 Atl. Rep. 638. 618 Duvernet v. Morgan's &c. Co., 49 La. An. 484; s. c. 21 South. Rep. 644. $3054. Questions of Procedure in these Cases.-A complaint which alleged that the defendant negligently stopped its train, on which the plaintiff was a passenger, for over half an hour on a high trestle, and that, while there, because of the darkness and the poor light furnished by the defendant on the train, the plaintiff missed his footing and fell to the ground, but did not allege that the plaintiff was ignorant of the fact that the train was stopped on the trestle, did not state a cause of action, because it showed contributory negligence on the part of the plaintiff, and did not show that the negligence of the defendant was the proximate cause of the accident. The knowledge of the passenger of the character of the ground at the particular place where he endeavored to alight from the train while in motion, and of the existence of defects or impediments making the act dangerous, is a proper evidentiary fact for the consideration of the jury on the question of contributory negligence.620 619 ARTICLE VI. FAILING TO PROTECT HIMSELF AGAINST DANGERS IN AND ABOUT PREMISES OF CARRIER. SECTION 3057. Contributory negligence of the 3058. Negligence of carrier does not 3060. No defense that some other SECTION 3061. Effect of knowledge on the part of the passenger that the premises are unsafe. 3062. Passenger standing in dangerous place not on carrier's vehicle. 3063. Instances where contributory negligence was imputed to the passenger. 3064. Instances where contributory negligence was not imputed. § 3057. Contributory Negligence of the Passenger-His Right to Assume that the Premises are Safe.621-There are three leading ideas in the cases which deal with the question of the contributory negligence of the passenger who is injured in consequence of defects in 619 Jarrell v. Charleston &c. R. Co., 58 S. C. 491; s. c. 36 S. E. Rep. 910. For a complaint in an action of this kind which, prior to the recent statute of Indiana already referred to (Vol. I, § 365, p. 341, note 6), did not sufficiently negative contributory negligence on the part of the plaintiff, see Cincinnati &c. R. Co. v. Peters, 80 Ind. 168. 620 Sanders v. Southern R. Co., 107 Ga. 132; s. c. 32 S. E. Rep. 840; 14 Am. & Eng. Rail. Cas. (N. S.) 281. State of case under which an instruction to the effect that "if plaintiff stepped carelessly or accidentally on or near the edge," etc., the jury should find for the defendants, was properly refused: Missouri &c. R. Co. v. Wortham, 73 Tex. 25; s. c. 10 S. W. Rep. 741; 3 L. R. A. 368. 621 This section is cited in §§ 2565, 2931, 2987, 3579, 3600. the stations, grounds and means of ingress to and egress from the vehicles of the carrier: 1. The first is that the passenger may rightly assume, in the absence of knowledge to the contrary, and where the assumption would not involve rashness or gross negligence on his part, that the carrier keeps his stations, platforms, passageways, and other premises properly used by the passenger, in a reasonably safe condition for such purposes.622 The meaning of this clearly is that contributory negligence will not, as matter of law, be imputed to the passenger, because, in the necessary hurry and confusion of embarking or disembarking, he does not look carefully for holes, obstructions, abrupt descents, or other dangers, in the passage-way over which he must travel.623 Nor will the fact that the person injured had a general acquaintance with the grounds and had frequently used the approach, necessarily impute to him contributory negligence as matter of law; but the question will go to the jury. Under the principles here laid down, the question of contributory negligence has been held a question for the jury, under evidence tending to show that, in the nighttime, a woman waiting at a railway station for a delayed train stepped off the end of the platform, there being no steps at that place, and no lights outside the station house ;625 that a passenger at a station where the train had stopped for dinner, after having eaten his dinner and returned to the train, subsequently returned to the platform and stumbled and fell thereon and received an injury from a defect therein;** 624 622 Ante, §§ 2930, 2987; post, § 3087; Kentucky &c. Bridge Co. v. McKinney, 9 Ind. App. 213; s. c. 36 N. E. Rep. 448; Louisville &c. R. Co. v. Lucas, 119 Ind. 583; s. c. 21 N. E. Rep. 968; Archer v. New York &c. R. Co., 106 N. Y. 589; s. c. 13 N. E. Rep. 318; Lake Shore &c. R. Co. v. Ward, 35 Ill. App. 423; s. c. aff'd 135 Ill. 511; 26 N. E. Rep. 520; Watson v. Oxanna Land Co., 92-Ala. 320; s. c. 8 South. Rep. 770. Upon the subject of this right to assume that the other party will not act negligently or unlawfully,-see Vol. I, §§ 190, 191; Vol. II, §§ 1448, 1612, 1613. 623 Watson v. Oxanna Land Co., 92 Ala. 320; s. c. 8 South. Rep. 770; Union &c. R. Co. v. Evans, 52 Neb. 50; s. c. 71 N. W. Rep. 1062 (steep incline, but plaintiff acquainted with the approach). Thus, a person not familiar with the grounds, who had purchased a ticket, supposing that a train which stood at a freight platform some distance below the passenger platform would move up to the latter platform and start from there, waited until he learned that the train was just on the point of starting. In running to get aboard, he stumbled over a box and sustained injuries. It was held that he was not guilty of contributory negligence as matter of law: Maclennan v. Long Island &c. R. Co., 52 N. Y. Super. Ct. 22. 624 Union &c. R. Co. v. Evans, 52 Neb. 50; s. c. 71 N. W. Rep. 1062 (steep incline, but plaintiff acquainted with the approach). 023 Missouri &c. R. Co. v. Neiswanger, 41 Kan. 621; s. c. 21 Pac. Rep. 582. 626 St. Louis &c. R. Co. v. Coulson, 8 Kan. App. 4; s. c. 4 Am. Neg. Rep. 629; 54 Pac. Rep. 2 (some of the planks badly cupped and warped. nails drawn, platform rough and uneven, causing the plaintiff to stumble). 628 and that the plaintiff, in the nighttime, there being no lights in the ticket office, was injured by falling from a platform connected with the office, while walking obliquely from the office,-and this, although he was well acquainted with the premises.627 Thus, it has been held that passengers crossing a railway track at a station, in order to leave or board a train halted for that purpose, are not held to the exercise of the same care and diligence which the law puts upon a traveller upon the public highway at an ordinary railway crossing, but are authorized to assume that the railroad corporation. will so order its trains that they will be safe from harm on the track which they are thus invited and required to cross in order to secure their passage. So, it was held that a passenger was not guilty of contributory negligence, such as would preclude her from recovering damages, by reason of the fact that, before attempting to cross a dangerous place, she did not call for lights or assistance, or by reason of the fact that she was acquainted with the nature of the place, having crossed it on the afternoon of the same day. "She had a right to presume that whatever light was requisite to make the passage a safe one would be provided by the defendant, and that the passengers in the car would not be sent out into the dark at the risk of life and limb, to make a transit which could so easily have been rendered safe by the use of ordinary care and prudence."629 So, where a female passenger was required to alight from a freight train at a place beyond the station, and was injured by falling while attempting to cross a cattle pit, it was held that the company was liable to her in damages, and that contributory negligence was not imputable to her as matter of law, because she failed to discover a gate leading into a private enclosure, through which the station might have been safely reached, the route being unmarked.63o 3058. Negligence of Carrier does not Absolve Passenger from Duty of Exercising Care.-It is not to be concluded from the foregoing that the law is in such a state that the negligence of the carrier will totally absolve the passenger from the duty of exercising reasonable or ordinary care for his own protection and safety. That is not the meaning of the foregoing decisions. Their meaning is 627 Alabama &c. R. Co. v. Arnold, 84 Ala. 159; s. c. 4 South. Rep. 359; 5 Am. St. Rep. 354 (Stone, C. J., holding that it was negligence as a matter of law). See, also, Texas &c. R. Co. v. Nolan, 62 Fed. Rep. 552; S. c. 11 C. C. A. 202. 628 Weeks v. New Orleans &c. R. Co., 40 La. An. 800; s. c. 5 South. 629 Jamison v. San Jose &c. R. Co., 55 Cal. 593, 598. 6.30 New York &c. R. Co. v. Doane, 115 Ind. 435; s. c. 1 L. R. A. 157. 631 that, by reason of the reliance which the passenger may justly place upon the fidelity of the carrier to his public obligations, the law does not expect of the passenger the same scrutiny of the premises of the carrier which it would expect of him if he were on the premises of, a person or corporation owing no duty to him. They do not mean that the law absolves him from the duty of exercising ordinary or rea-, sonable care; but that what is ordinary or reasonable care is different in the case of a passenger so circumstanced, from the case of a person on the premises of a stranger, or approaching a railway track from a public highway. Many cases affirm the proposition that a passenger who is hurt through a defect or obstruction in the carrier's premises will be precluded from recovering damages, if his hurt was brought about by his own failure to exercise ordinary or reasonable care.31 Clearly, a passenger can not so far rely upon the conclusion that the carrier has done his duty in keeping his premises clear of obstructions or sources of danger, as to go forward heedlessly, without looking or taking any care for his own safety. A passenger ought, for instance, to know that mail bags are likely to be handled upon the platform of a railway station; and if he stumbles over them, without looking, and is hurt, he is clearly guilty of contributory negligence, and ought not to recover damages from the company.632 Moreover, this reasonable or ordinary care which is demanded of the passenger exacts an attention on his part to surrounding dangers proportioned to the particular situation in which he has placed himself. Thus, it has been well held that if he elects, or is required to approach a railway station by going through the railway yard, where several railway tracks are crossed by an unguarded plank walk extending from the street to the station, his situation demands an increased vigilance on his part to save himself from being struck by approaching trains or cars. So, it has been held that passengers who have left their train at an intermediate station, while on a side track, for the purpose of letting another train pass, are bound to exercise reasonable care and caution to avoid injury from passing trains, although the company has permitted the practice of leaving and re-entering the train under such circumstances; and they have no right to expect such a place of ingress or egress to be as safe as a station platform, or to rely 633 631 Chewning v. Ensley R. Co., 100 Ala. 493; s. c. 14 South. Rep. 204; Renneker v. South Carolina R. Co., 20 S. C. 219. 632 Sargent v. St. Louis &c. R. Co., 114 Mo. 348; s. c. 19 L. R. A. 460; 21 S. W. Rep. 823. 633 Jones v. Grand Trunk R. Co.. 16 Ont. App. 37; s. c. 39 Am. & Eng. Rail. Cas. 487. |