board the train does not so plainly demonstrate negligence on his part, the question is properly one for the jury. It can not be said that, under all circumstances, an attempt to board a train when in motion will constitute negligence as matter of law.647 § 2874. Liability where Signal is Given by an Unauthorized Person. It has been held that the fact that a signal for starting a street railway train, causing one who is attempting to get on to be thrown down and injured, was given by an unauthorized person, will not relieve the company from liability, if the conductor, by due diligence, could have prevented the moving of the car and avoided the injury, by countermanding the signal or otherwise, although he did not know that any one was attempting to get on the car." 648 § 2875. To whom the Carrier Owes this Duty: Persons Entering the Cars to Assist Passengers.-One opinion is that where a person who is not a passenger, enters the passenger train for the purpose of assisting a passenger on board, who needs assistance, or for the purpose of assisting such a passenger to alight, the railway company owes the same duty to him of giving him a reasonable time to place his charge on board, or a reasonable time to assist the passenger in alighting, that it owes to the passenger himself, and that if he is injured in attempting to get off the train where the train starts suddenly, without giving the customary signals, he will have an action. for damages on the footing of negligence.649 The opposing theory is that the status of such persons is, at best, analogous to that of mere licensees, and that they take the license which they enjoy com periculo.50 This is the doctrine of the Supreme Judicial Court of 647 Johnson v. West Chester &c. R. Co., 70 Pa. St. 357. 648 North Chicago Street R. Co. v. Cook, 145 Ill. 551; s. c. 33 N. E. Rep. 958; aff'g s. c. 43 Ill. App. 634. 649 Doss v. Missouri &c. R. Co., 59 Mo. 27; Louisville &c. R. Co. v. Crunk, 119 Ind. 542; s. c. 21 N. E. Rep. 31. GO As to the status of licensees, see Vol. I, § 946; Vol. II, § 1722; post, § 3309; Sutton v. New York &c. R. Co., 66 N. Y. 243; s. c. 4 Hun (N. Y.) 760; Nicholson v. Erie R. Co., 41 N. Y. 525. It is indeed proper that persons having duties to perform incidental to the departure of passengers should be entitled to the same protection which is the due of every person who comes upon another's premises by invitation, express or implied. This rule has been expressed with clearness and accuracy by Chief Justice Gray of the Massachusetts Supreme Court: "The owner or occupant of land is liable in damages to those coming to it, using due care, at his invitation or inducement, express or implied, on any business to be transacted with or permitted by him, for an injury occasioned by the unsafe condition of the land, or of the access to it, which is known to him and not to them, and which he has negligently suffered to exist, and has given them no notice of:" Carleton v. Franconia Iron Co., 99 Mass. 216. 217. This rule was properly held applicable, in Tobin v. Portland &c. R. Co., 59 Me. 183, to the case of a hackman who was injured by stepping into a hole in the platform of a railroad station. The cases cited Massachusetts, and, in the opinion of that court, such a person is not entitled to special notice of the departure of the train; but, on the contrary, the defendants may be said to have operated their train with. ordinary care, although no notice of its departure is given, and the railroad company owes no higher duty to such a person than to use ordinary care. On this basis of reasoning, it has been held that the failure of the servants of a railway company to stop its passenger train for the full length of time that is usually required for passengers to get on and off at that place, will give no right of action to a person injured in getting off, after going on the train to assist a lady and child to a seat, provided he had a reasonable time to get off.652 § 2876. Injuries from Starting Trains with a Sudden Motion.658. When the passenger, being in the exercise of reasonable care and diligence, in getting upon the train,654 or alighting therefrom,655 is injured by the fact that, in disregard of his situation, the train is started with a sudden jerk, unusually violent, whereby he is thrown down, the company will be liable to him, or, in case he is killed, to the person entitled to sue therefor, in damages.656 This is especially true in that numerous class of cases where the train, after stopping at a station, is started without giving the passengers whose destination the station is, sufficient time to alight.657 On the other hand, by the learned judge who delivered the opinion in Doss v. Missouri &c. R. Co., 59 Mo. 27, do not warrant the conclusion reached in that case. The language cited from Gillis v. Pennsylvania R. Co., 59 Pa. St. 129; s. c. 8 Am. L. Reg. (N. S.) 729, is in its terms limited to the case of a person injured from a defective condition of the premises. In Holmes v. North-Eastern R. Co., L. R. 4 Exch. 254; s. c. L. R. 6 Exch. 123, the injury arose from the same cause, and the express ground of the decision was that the plaintiff was not a mere licensee, but, being a consignee of freight, had a right to be where he was. Gautret v. Egerton, L. R. 2 C. P. 371, was evidently cited by mistake, as it establishes precisely the contrary principle. The plaintiff, a licensee, having been injured in the enjoyment of his privilege of crossing a private bridge, Keating, J., said: "I am, however, utterly unable to discover any duty which the defendants have contracted towards the persons whom the plaint iffs represent, or what particular breach of duty is charged." 651 Lucas v. New Bedford &c. R. Co., 6 Gray (Mass.) 64. 652 Little Rock &c. R. Co. v. Lawton, 55 Ark. 428; s. c. 15 L. R. A. 434; 18 S. W. Rep. 543. 653 This section is cited in § 3526. 654 Daley v. Port Jervis &c. R. Co., 80 Hun (N. Y.) 174; s. c. 61 N. Y. St. Rep. 632; 29 N. Y. Supp. 1011. 655 Louisville &c. R. Co. v. Wood, 113 Ind. 544; Texas &c. R. Co. v. Miller, 79 Tex. 78; s. c. 15 S. W. Rep. 264. 65 Burr v. Pennsylvania R. Co., 64 N. J. L. 30; s. c. 44 Atl. Rep. 845; San Antonio &c. R. Co. v. Choate (Tex. Civ. App.), 56 S. W. Rep. 214; Atchison &c. R. Co. v Frier (Tex. Civ. App.), 22 S. W. Rep. 6 (no off. rep.); Macon &c. R. Co. v. Moore, 108 Ga. 84; s. c. 6 Am. Neg. Rep. 451; 15 Am. & Eng. Rail. Cas. (N. S.) 842; 33 S. E. Rep. 889; Texas &c. R. Co. v. Nunn, 98 Fed. Rep. 963. 657 Texas &c. R. Co. v. Miller, 79 Tex. 78; s. c. 15 S. W. Rep. 264; ante, § 2860. 658 although a passenger may be injured by a sudden starting of the train while alighting therefrom, and although this may be partly the fault of the carrier, yet if his injury would not have happened but for the fact of his being in a state of intoxication, he can not recover. So, manifestly, a railroad company is not liable for injuries from the sudden starting of its train, not at a station, but upon a side track, where it is awaiting the passage of another train, to one, without a ticket, who alights from the latter, and hastily attempts to get aboard the former by the rear platform, while no train employé is in sight.659 A railroad company which furnishes as the only means of carrying passengers over its line, a "mixed train" composed of freight and passenger cars, is bound to give a passenger a reasonable opportunity to be seated before starting the train, where it can not be started without jerking and jolting, which endangers the safety of unseated passengers.669 661 § 2877. Further of Starting Trains with a Sudden Motion." On the other hand, the passenger can not make an injury received by such jolting and jerking, a ground of recovering damages, where his own want of ordinary care contributed to bring about the injury.662 Where the plaintiff's testimony, that he was thrown from the platform of a car by a sudden jerk and that his foot was run over by the train, was corroborated by two witnesses, the court refused to disturb the verdict on the ground of its being supported by insufficient evidence.663 In such an action, an instruction to the jury that no deduction of negligence could be made from the mere fact of a violent jerk of the train, was properly refused, where it appeared that the jerk was of an unusual nature, such as ought to take the question of the negligence of the defendant to the jury.664 The reason is that the happening of an injury to a passenger by the lurching, jerking, or starting of the train with extraordinary vio Strand v. Chicago &c. R. Co., 67 Mich. 380; s. c. 11 West. Rep. 538; 34 N. W. Rep. 712. 50 Philips v. Northern R. Co., 62 Hun (N. Y.) 233; s. c. 41 N. Y. St. Rep. 780; 16 N. Y. Supp. 909. The court can not withdraw such a case from the jury where the plaintiff's testimony tends to show that the train was suddenly started while he was attempting to alight, and the defendant's testimony tends to show that it could not be so started: Atchison &c. R. Co. v. Frier (Tex. Civ. App.), 22 S. W. Rep. 6 (no off. rep.). Ceo Macon &c. R. Co. v. Moore, 108 Ga. 84; s. c. 6 Am. Neg. Rep. 451; 15 Am. & Eng. Rail. Cas. (N. S.) 842; 33 S. E. Rep. 889. Go This section is cited in § 3526. 662 Macon &c. R. Co. v. Moore, 108 Ga. 84; s. c. 6 Am. Neg. Rep. 451; 15 Am. & Eng. Rail. Cas. (N. S.) 842; 33 S. E. Rep. 889. 663 San San lence furnishes prima facie evidence of negligence, such as casts upon the company the burden of proving that the accident happened either from the contributory negligence of the passenger, or notwithstanding the exercise of due care on its own part.665 Where the negligence alleged in the plaintiff's declaration was that the defendant caused its "train to be suddenly and violently started and moved" while the plaintiff was alighting therefrom, an instruction predicating the negligence of the defendant on the fact of "failing to stop the train a reasonable time to enable plaintiff to alight therefrom,"— was erroneous, because it authorized a recovery for a different breach of duty from the one alleged in the declaration.666 It was so held where the passenger was directed by the conductor to get on board the train while it was slowly moving, and the engineer, not knowing of the direction, caused the train suddenly to move forward;667 where a shipper, riding with the consent of the company in a box car to attend to his stock, fell into a culvert in the track while attempting to comply with a direction of the conductor, previously given, to come back to the caboose the next time the train stopped;668 where a woman, although advanced in pregnancy, was injured in consequence of obeying the direction of the conductor in jumping from the car to the ground, the train having stopped at a place other than the station platform;669 and where a passenger jumped from a moving train because of a false alarm given by a brakeman under a belief that danger was imminent.670 § 2878. Injuries to Passengers Alighting while Train in Motion.It can not be affirmed as an inflexible rule that it is contributory negligence for a passenger to attempt to alight from a railway train. while in motion. Whether it will be so or not will obviously depend upon the speed and the position of the train and other surrounding circumstances. If the train is moving very slowly past a station platform of suitable height, it would clearly not be negligence as matter of law, nor should a jury in such a case find negligence in fact, in the act of a passenger in stepping from the train to the platform, provided it should become necessary so to do in order to leave the 665 Burr v. Pennsylvania R. Co., 64 N. J. L. 30; s. c. 44 Atl. Rep. 845; ante, § 2754. 66 Chicago &c. R. Co. v. Wallace, 85 Ill. App. 606. 667 Missouri &c. R. Co. v. Foreman (Tex. Civ. App.), 46 S. W. Rep. 834 (no off. rep.). 668 Nurse v. St. Louis &c. R. Co., 61 Mo. App. 67. 660 Baltimore &c. R. Co. v. Leapley, 65 Md. 571; s. c. 4 Cent. Rep. 253. 070 Ephland v. Missouri &c. R. Co., 57 Mo. App. 147; s. c. aff'd 137 Mo. 187; 7 Am. & Eng. Rail. Cas. (N. S.) 820; rehearing denied 137 Mo. 196; 38 S. W. Rep. 926. Compare Vol. I, §§ 195, 441. train at his proper place of destination. It may therefore be affirmed, on the one hand, that where a train stops at a station to which the company contracts to carry a passenger, the company is liable if reasonable time to leave is not afforded, and the passenger is injured in an attempt to leave after it has started, and while in motion, if he does not, in getting off, incur a danger obvious to the mind of a reasonable man;671 and on the other hand that, although the company has failed in its duty of stopping the train at the station for a reasonable time to allow the passenger to alight,-yet if he attempts to do so after the train has acquired such a rapid motion. as to make it obvious to a man acting reasonably under the same circumstances, that an attempt to alight would be attended with danger, he can not make the negligence of the company a ground for recovering damages from it in case he is hurt, but his hurt will be imputed to his own negligence as the proximate cause of it.672 Balancing these considerations, it has been well reasoned that one who voluntarily and not for the purpose of avoiding a sudden danger, jumps from a train of cars while in rapid motion, is negligent in such a sense that he can not recover damages from the railway company for an injury thereby sustained; whereas it is a question for a jury whether one who steps from a moving car to a station platform is guilty of negligence.673 The remarks of Brett, J., though made in a case not presenting the circumstances under discussion,67 have great force. He said: "It has been argued that no amount of inconvenience, if there be no actual peril, will justify a person incurring danger in an attempt to get rid of it. I confess I am not prepared to go to that length. I think if the inconvenience is so great that it is reasonable to get rid of it by an act not obviously dangerous, and executed without carelessness, the person causing the inconvenience by his negligence would be liable for any injury that might result from an attempt to avoid such inconvenience." And Chief Baron Kelly's language in his dissenting opinion in Siner v. Great Western 671 Central R. &c. Co. v. Miles, 88 Ala. 256; s. c. 41 Am. & Eng. Rail. Cas. 149; 6 South. Rep. 696; Covington v. Western &c. R. Co., 81 Ga. 273; s. c. 6 S. E. Rep. 593. 072 Brown v. Chicago &c. R. Co., 80 Wis. 162; s. c. 49 N. W. Rep. 807 (train running eighteen miles an hour); Barnett v. East Tennessee &c. R. Co., 87 Ga. 766; s. c. 13 S. E. Rep. 904; Walker v. Vicksburg &c. R. Co., 41 La. An. 795; s. c. 7 L. R. A. 111; 6 South. Rep. 916; 41 Am. & Eng. Rail. Cas. 172; Railroad Co. v. Aspell, 23 Pa. St. 147; Jeffersonville 29675 &c. R. Co. v. Hendricks' Administrator, 26 Ind. 228; Morrison v. Erie R. Co., 56 N. Y. 302; Damont v. New Orleans &c. R. Co., 9 La. An. 441; Dougherty v. Chicago &c. R. Co., 86 Ill. 467. 673 Tabler v. Hannibal &c. R. Co., 93 Mo. 79; s. c. 5 S. W. Rep. 810. 674 Adams v. Lancashire R. Co., L. R. 4 C. P. 739. 675 Ibid., L. R. 4 C. P. 739. See these remarks approved in Gee v. Metropolitan R. Co., L. R. 8 Q. B. 161, 173; and in Robson v. NorthEastern R. Co., L. R. 10 Q. B. 271. |