who was against the nonsuit with Keating, J. He very fitly describes the duty of the company as to providing proper means for passengers to alight, and that must be a question for the jury whether the plaintiff was or was not guilty of unreasonable want of caution in striving to get out at the risk of being carried past.

In Robson v. North Eastern R. W. Co., L. R. 2 Q. B. D. 86, the plaintiff recovered, and Lord Coleridge notices that Siner's case is commented on and distinguished in Bridges v. North London R. W. Co., in Ex. Ch. L. R. 1 Q. B. 377, and in House of Lords, L. R. 7 H. L. 213.

The last case is the highest and fullest authority on the question of what is proper evidence to be left to the jury. There is a very full review of the authorities, and the opinions of the judges were called for and given.

I especially refer to the very lucid judgment of Brett, L. J. The Lords decided that the case must be left to the jury.

In the case already cited, of Robson v. North Eastern Ry. Co., Brett, L. J., says, in reference to Bridge's case: "The House of Lords held that as the carrying of railway passengers was conduct in the ordinary affairs of life, the jury was the proper tribunal to decide. Siner v. Great Western R. W. Co., was decided in the heat of the controversy, and without saying that it ought to be overruled, I may say that it was decided by judges who thought that these cases ought to be left to the judge and not to the jury.

It appears to me that the judgment of the House of Lords in Bridges v. North London Ry. Co., puts an end to a long controversy, not as to the law, but as to the mode of dealing with these cases. Some of the judges seem to have been of opinion that these cases should as much as possible be withdrawn from the jury, and that the Court ought to say what was reasonable for the passenger to do."

The authorities are so fully noticed in these cases that their names need not be repeated.

We may also refer to Cameron v. Milloy, 14 C. P. 345, and the judgment of Wilson, C. J.

In the case before us I think a prima facie case of negligence was established. The conductor called out that Lefroy was the next station. The train, in place of coming, as it should have done, to a full stop, apparently (though not very clearly shown) was only slowed. The plaintiff and several others anxious to alight crowded to the door and steps of their car. Several got out on the platform, and the plaintiff followed her husband, and, most anxious to reach her home, sprang out, the train being in motion.

It was properly left to the jury to say whether she had acted with reasonable prudence in so doing, and whether (in substance) by her imprudence she wholly brought the injury and loss on her

self.

As Kelly, C. B., said: "I am clearly of opinion that a railway company are not entitled to expose any passenger to the necessity of choosing between two alternatives, neither of which he could be lawfully called on to choose, namely, either to go on to Bangor, or to take his chance of danger and jump out; and if they do so, the choice is made at their peril." Siner v. Great Western Ry. Co.,

L. R. 3 Ex., at p. 136.

Had the jury here found that plaintiff had acted with unreasonable imprudence and found for the defendants, I should not question their verdict.

They have found otherwise, and I cannot say they are wrong.

On no point should a railway company be more careful than in a matter of this kind. On a dark night they announce the name of the next station, knowing that they had passengers for that station, and then either not fully or completely stopped the train, so as either to give a safe means of exit, or to take care to warn passengers that they had determined to break their contract by not stopping at all.

The latest case on this much debated question is Davey v. London and South Western R. W. Co., 11 Q. B. D. 213, decided a few months ago. The plaintiff must show a prima facie case of negligence causing the injury. But if he show that himself caused the injury by his own conduct, which was the sole cause of the accident, and not any negligence on defendants' part, he cannot recover, and may be nonsuited.

The last number of the "Weekly Notes," for December 8th, p. 201, mentions the affirmance of this judgment by the Master of the Rolls, and Bowen, L. J., Baggallay, L. J., dissenting.

Armour and Cameron, JJ., concurred.

Order nisi discharged.

Obligation of Railroad Company to Stop Trains Long Enough to allow Passengers to Alight. It is the duty of a railroad company to stop a reasonable time so as to give the passengers an opportunity of alighting. Penna. R. R. Co. v. Kilgore, 32 Pa. St. 293; Fairmount & Arch St. Pass R. Co. v. Stutler, 54 Pa. St. 375; Southern R. R. Co. v. Kendrick, 40 Miss. 374; Fuller v. Naugatuck R. R. Co., 21 Conn. 557; Jeffersonville R. R. Co. v. Hendricks, 26 Ind. 233; Toledo, etc., R. R. Co. v. Baddeley, 54 Ill. 19; St. Louis, etc. R. Co. v. Cantrell, 8 Am. & Eng. R. R. Cas. 198; Swigert o. Hannibal, etc., R. R. Co., 9 Am. & Eng. R. R. Cas. 322.

Passenger Alighting from Moving Train Guilty of Contributory Negligence. A passenger who attempts to get off a moving train, even if he sees himself being carried past his destination, is generally held guilty of such contributory negligence as precludes recovery. Illinois Central R. R. Co. v. Able, 59 Ill. 131; Evansville & C. R. Co. v. Duncan, 28 Ind. 441; Ohio & M. R. Co. v. Schiebe, 44 Ill. 460; Lambeth v. N. C. R. R. Co., 66 N. C. 494; Lucas v. New Bedford & T. R. Co., 6 Gray, 64; Savett v. Manchester & L. R. Co., 16 Gray, 501; Simon v. N. Y. Cent. & H. R. R. Co., 3 Rob. (N. Y.), 25; Galveston, H. & S. C. R. Co. v. Gierso, 51 Tex. 189; Nelson v. Atlantic & P. R. Co., 68 Mo. 593; Harvey v. Eastern R. R. Co., 116 Mass. 269; Knight v. Ponchartrain R. Co., 23 La. Ann. 462; Jeffersonville, etc., R. Co. v.

Hendricks, 26 Md. 288; Penna. R. R. Co. v. Aspell, 23 Pa. St. 147; Dougherty v. C., B. & Q. R. R. Co., 86 Ill. 467; Dumont v. New Orleans R. R. Co., 9 La. Ann. 441; Hubner v. N. O. & C. R. R. Co., 23 La. Ann. 492; Doss v. M. K. & T. R. Co., 59 Mo. 37; Atchison, etc., R. Co. v. Flynn, 1 Am. & Eng. R. R. Cas. 240; Price v. St. L., K. C. & N. R. R. Co., 3 Am. & Eng. R. R. Cas. 365; Lake Shore & M. S. R. Co. v. Bangs, 3 Am. & Eng. R. R. Cas. 426; Jewell v. Chicago, etc., R. Co., 6 Am. & Eng. R. R. Cas. 379; Houston, etc., R. R. Co. v. Leslie, 9 Am. & Eng. R. R. Cas. 407.

In the following cases the question of contributory negligence was held to be one for the jury: Price v. St. L., K. C. & N. R. R. Co., 3 Am. & Eng. R. R. Cas. 365; Treat v. Boston & L. R. Co., 3 Am. & Eng. R. R. Cas. 423. Passenger Alighting after Train has Started. Where the train after having come to a stand-still is again started, a passenger is not warranted in attempting to alight. Illinois Central R. R. Co. v. Slatton, 54 Ill. 133; Chicago & N. W. R. Co. v. Scates, 90 Ill. 586; Davies v. Chicago & N. W. R. Co., 18 Wisc. 175; Imhoff v. Chicago & M. R. Co., 20 Wisc. 344; Morrison v. Erie R. R. Co., 56 N. Y. 304; Phillips v. R. & S. R. R. Co., 49 N. Y. 177; Lucas v. W. B. & T. R. Co., 6 Allen, 64.

Even where the train has not stopped a sufficient length of time to allow a passenger to alight safely, it has been held that he is guilty of contributory negligence when he attempts to alight after the train has started. Jewell v. Chicago, etc., R. R. Co., 6 Am. & Eng. R. R. Cas. 379. But see contra Strauss v. Kansas City R. Co., 6 Am. & Eng. R. R. Cas. 384. And see Brooks v. Boston & Me. R. R. Co., and note supra.

Passenger Alighting from Moving Train by Advice or Order of Conductor. As to how far an order from the conductor or other person in authority will warrant a passenger in attempting to jump from a moving train, the authorities are not harmonious. The weight of authority is to the effect that the mere expression of advice or opinion by the conductor to that effect, will not warrant a party in attempting it. Chicago, B. & Q. R. R. Co. v. Hazzard, 26 Ill. 373; Chicago & Alton R. R. Co. v. Randolph, 53 Ill. 510; Jeffersonville R. R. Co. v. Swift, 26 Ind. 459; Lambeth v. N. C. R. R. Co., 66 N. C. 794; Columbus R. R. Co. v. Powell, 40 Ind. 37.

But words tantamount to a command will warrant the party in attempting it, and the company will in such case generally be held responsible for the consequences. St. Louis, etc., R. R. Co. v. Cantrell, 8 Am. & Eng. R. R. Cas. 198; Georgia R. R. Co. v. McCurdy, 45 Ga. 288; Filer v. N. Y. Central R. R. Co., 49 N. Y. 47; Klein v. Central Pac. R. R. Co., 37 Cal. 400.

But see Pittsburg, etc., R. Co. v. Krouse, 30 Ohio St. 222. Generally where a passenger alights from a moving train at the command or at the instance of a railway official, the question of contributory negligence is for the jury. Muchado v. Brooklyn C. R. Co., 30 N. Y. 370; Ernst v. Hudson River R. R. Co., 35 N. Y. 38.

See also McIntyre v. N. Y. Central R. R. Co., 27 N. Y. 287; Nichols v. Sixth Ave, R. R. Co., 38 N. Y. 131; Eppendorf v. B. & N. R. R. Co., 69 N. Y. 195; Downie v. Hendrie, 13 Cent. L. J. 371; Penna. R. R. Co. v. McCloskey, 23 Pa. St. 526.

Passengers in Peril.-Where a passenger in the course of his transportation by a common carrier suddenly perceives that he is in peril, caused by the negligence of the carrier, it seems that he is warranted in attempting to make his escape by jumping from the vehicle, provided that an ordinarily prudent and reasonable man placed in a similar situation would have done the like, and if in thus attempting to make his escape he is injured, the carrier is responsible. Jones v. Boyce, 1 Stark. 402; Ingalls v. Bills, 9 Metc. 1; Stokes v. Saltonstall, 13 Pet. 181; Frinketal v. Potter, 17 Ill. 406; McKinney v. Nere, 1 McL. 540; Card v. Ellsworth, 65 Me. 547; Galena v. Chicago Union R. R. Co. v. Yarwood, 15 Ill. 468; s. c., 17 Ill. 509; Galena & Chi

cago Union R. R. Co. v. Fay, 16 Ill. 558; Collins v. Albany & S. W. R. R. Co., 12 Barb. 493; S. W. R. R. Co. v. Panck, 24 Ga. 356; Hill v. N. O., O. & Gt. W. R. R. Co., 11 La. Ann. 292; Wilson v. Northern Pacific R. R. Co., 26 Minn. 278; Mobile & M. R. R. Co. v. Ashcraft, 48 Ala. 16; Bull v. N. Y. Central R. R. Co., 31 N. Y. 314; Eldridge v. Long Island R. R. Co., 1 Sandf. (N. Y.) 89; Iron R. R. Co. v. Mowery, 3 Am. & Eng. R. R. Cas. 361; Nashville & C. R. Co. v. Erwin, 3 Am. & Eng. R. R. Cas. 465; Smith v. St. Paul, etc., R. R. Co., 9 Am. & Eng. R. R. Cas. 262; Pittsburg, etc., R. R. Co. v. Rohrman, 12 Am. & Eng. R. R. Cas. 176.

Exceptional Circumstances. - Under certain exceptional circumstances parties have been held warranted in jumping from moving trains. Lloyd . Hannibal & St. Jo R. Co., 53 Mo. 509; Pennsylvania R. R. Co. v. Kilgore, 39 Pa. St. 292; Chicago, etc., R. R. Co. v. Bonifield, 8 Am. & Eng. R. R. Cas. 493.

ATCHISON, TOPEKA AND SANTA FÉ R. R. Co.

v.

HARVEY.

(Advance Case, Kansas. April 7, 1884.)

Where the jury in their special findings returned that the actual damage done to a passenger by a sudden starting of the train while she was alighting amounted to $300, a general verdict for $700 will be set aside, where the circumstances are not such as to entitle the plaintiff to exemplary damages.

The answers to some of the special questions in this case held so evasive and unsatisfactory as to warrant the belief that the railroad company did not have a fair and impartial trial and therefore to warrant reversal.

ERROR from Osage County.

Geo. R. Peck, C. N. Sterry, A. A. Hurd, and W. C. Campbell for plaintiff in error.

Ellis Lewis for defendant in error.

PER CURIAM.-This was an action brought by Mary Harvey against the Atchison, Topeka & Santa Fé Ř. R. Co., for injuries alleged to have been caused by the negligence and carelessness of the company. The petition alleges that on August 3, 1882, the plaintiff was a passenger on the cars of the company going from Osage City to Peterton, the latter being a station on the line of the road where trains regularly stop to take on and let off passengers; that after the train had stopped at Peterton and while the plaintiff was getting off, she was violently thrown from the train of cars upon the ground and greatly injured and bruised upon her face and arms; and that such injuries were caused by the company failing to stop its train at the proper place and by starting and running its cars on its railroad track after the train had stopped

and before the plaintiff had got off the cars, and she had time or could get off the cars, and by starting the train before she knew, or had reason to know, that the train was going to be moved or started.

Within the authority of the Union Pacific Ry. Co. v. Fray, the judgment in this case must be reversed. The general verdict of the jury is for $700. The jury returned in their special findings that the actual damages of the plaintiff by reason of her injuries were $300. It is not claimed that the plaintiff is entitled to exemplary damages. If it were intended to give the $400 for pain and suffering of the plaintiff, as claimed by counsel, that sum should have been included in the actual damages specially found by the jury. It was not so included, and, therefore, we cannot say with any certainty what the $400 were given for. Further than this, some of the answers to the special questions are so evasive and unsatisfatory as to lead to the belief that the railroad company did not have a fair and impartial trial.

The judgment of the district court will be reversed, and the cause remanded for a new trial.

MCQUILKIN

V.

CENTRAL PACIFIC R. R. Co.

(Advance Case, California. January 22, 1884.)

Where a railroad company has provided a platform on one side of its track on which passengers may alight, an attempt of a passenger to get off on the other side is not negligence per se.

The act or omission on the part of a passenger, claimed to have contributed to the injury complained of, must have direct relation to the act or omission charged to be negligence on the part of the carrier. Whether such act or omission was negligence, and whether such negligence was to any extent an immediate concurring cause of the injury, are matters to be decided by the jury.

If the negligence of the passenger contributed directly or proximately to the injury complained of, no recovery can be had against the carrier, whatever may have been his negligence. It is not giving the defendant the benefit of this rule as to contributory negligence to charge the jury that the negligence of the plaintiff which contributed as a proximate cause to the injury will prevent a recovery, provided the defendant has not been guilty of negligence.

APPEAL from a judgment of the Superior Court for Alameda County, entered in favor of the plaintiff, and from an order denying the defendant a new trial.

16 A. & E. R. Cas.—23