safe exit. Missouri Pacific R. Co. v. Long, (Tex., January 2, 1891), 16 S. W. Rep. 1016. The court said: “Can it be announced as a legal conclusion that a railroad company has discharged its whole duty to the passenger when it has provided a safe exit from its cars, while at the same time there exists another way, which is not safe, and which is in such a general use by its passengers as to induce the belief that it was provided, in part at least, for that purpose? We think not. A railroad company, it is true, is not bound to see that its passengers act in a prudent manner, or to use physical means to compel them to do so, But when its servants see that its passengers are in the habit of leaving its cars by a door not provided for the purpose, it would seem to be the duty of such servants at least to warn them that there is another door which they are expected to use. In this case there was testimony sufficient to warrant the jury in concluding that the side door was almost exclusively used by the passengers in making their egress from the car; and we cannot hold that there was not evidence to justify the findings that that way of egress was not safe for passengers, and that it was negligence on part of the company to permit it to be used as such."

Passenger Falling off Platform-Going from Depot in Unusual DirectionUnsafe Passageway-Absence of Light.-In Texas & P. R. Co. v. Brown, 78 Tex. 397, which was an action against a railroad company for injuries received by a passenger in falling off a platform at a depot on which he had alighted from a train in the night time, it was held that the court properly refused to instruct that if the depot had places prepared for the public where they could go in safety, then plaintiff could not recover if he received his injuries in going from the depot in a direction where the public did not usually go, and in a direction which had not been prepared for the public, as the negligence complained of was not that the company had not constructed a safe passageway, but that passengers were left to grope their way without sufficient light, and encounter dangers that could not be seen. Plaintiff, not being familiar with the surroundings, was put off the train on a low platform, and attempted to leave at the end in the direction he desired to go, and on account of the absence of light, was unable to see that there were no steps there. The way prepared by the company was zigzag in direction, and up several steps, and across a higher platform. Held, that the court properly charged that it was the duty of the company to provide good and safe places of egress from its platform at such places as persons would naturally or ordinarily go.

Platform at Station Constructed by Hotel Proprietor-Liability of Propri etor and Railroad Company for Injury to Passenger.-In Watson v. Oxanna Land Co., (Ala., Jan. 30, 1891), 8 So. Rep. 770, it was held that one who, to give access to his hotel, constructs a bridge on the land of a railroad company, and turns it over to the company for its use, is not liable for personal injuries caused by a defect in the bridge due to the company's failure to repair it. But the railroad company is liable for personal injuries sustained by a passenger by reason of a defect in a platform erected near the tracks, on the company's station grounds, which it permits its passengers to use in going from the train to and from the hotel for meals, though the platform may have been erected by the owner of the hotel, who also agreed with the company to keep it in repair.

DEBBINS

V.

OLD COLONY R. Co.

(Massachusetts Supreme Judicial Court, September 12, 1891.) Passenger Injury at Station-Crossing Track.-At defendant's station where the plaintiff was injured, there were several tracks, and a waiting shed opposite the station, and planking between the station and the shed to allow passengers to cross the track on a level. The plaintiff approached the station on the side of the waiting shed intending to take a train which stood on the further track from that side. The platform gates on the side of the cars nearest plaintiff were closed. The plaintiff passed the gate on a sidewalk which was not obstructed by it, and began to cross the near track diagonally, intending to go around the rear of the train and go upon it. While crossing he was struck by another train. Plaintiff testified that before attempting to cross he glanced in the direction from which this train came and saw nothing, there being much steam and smoke hanging over the track. The engine which struck him had no headlight, and it was getting towards dusk. There was evidence that the train which struck plaintiff was not ringing its bell or sounding its whistle. Held, that the plaintiff was negligent, and judgment for the defendant should not be disturbed.

EXCEPTIONS from Superior Court, Suffolk County.

Action by Debbins against Old Colony Railroad Company to recover for personal injuries. Judgment for defendant. Plaintiff excepts. Exceptions overruled.

J. E. Cotter and C. J. Jenney, for plaintiff.

J. H. Benton, Jr., for defendant.

Case stated.

HOLMES, J.-This is an action for personal injuries. After the evidence was all in, the judge before whom the case was tried directed a verdict for the defendant; and the question is whether the direction was right. The plaintiff's evidence tended to prove the following facts: On October 22, 1888, the plaintiff came to the defendant's Spring Street station in Boston, intending to take the 20 minutes past 5 afternoon train for Dedham. He approached the station by Spring street, moving towards the northeast. When he reached it, he found his train already there, on the further track, and the gate across the street on his side closed. The station was a little to his right, on the further side of the track, with a waiting shed opposite, on the plaintiff's side, the platform of which extended to Spring street. There was planking between the station and the shed enabling passengers to cross the track on a level. The train extended

across this planking back partly across the Spring Street crossing, and the platform gates on the side of the cars nearest to the plaintiff were closed. The plaintiff passed the gate on the sidewalk, which was not obstructed by it, and began to cross the nearer track diagonally, on the line of Spring street, intending to go round the rear of the train, and to get upon it. While crossing he was struck by another train, coming in from Dedham. According to his own testimony, before doing so he glanced up the track towards Dedham, but saw nothing, there being much steam and smoke from the engine of his train hanging over the track between the station and the shed. The engine which struck him had no headlight, and it was getting towards dusk; but the plaintiff's evidence would not warrant the conclusion that the approaching train could not have been seen if the smoke had not concealed it. There was evidence that the train which ran the plaintiff down was not ringing its bell or sounding its whistle. The gateman was standing in the middle of the highway with his back to the plaintiff, but we see nothing favorable to the plaintiff in this fact.

Plaintiff guilty of neg. ligence.

As there is considerable difference of opinion among the members of the court, we shall not discuss this case further than to say that, in the opinion of the majority, if the provisions of Pub. St. chap. 112, § 213, apply, (which we do not decide), the plaintiff was guilty of gross or willful negligence within the exemption of that section. If he had been merely a traveler on the highway, and had undertaken to cross the track while the gate was closed knowing it to be so, he would have taken the risk of the consequences. We express no opinion as to the defendant's contention that he would have been a wrongdoer; but the case would not have been distinguishable from Granger v. Boston & A. R. Co., 146 Mass. 276.

However, we assume, in favor of the plaintiff, that he had a right to enter the station, and to get upon the nearer platform in order to take a train, notwithstanding the fact that the gate was closed, and that if when within the gate he attempted to cross the track, he did not do so absolutely at his own risk; but he did so having the warning, which, but for the special exigency, would throw the risk upon him. The only way in which he could get rid of taking the risk was by using all the precautions which the circumstances would permit, and which would occur to a prudent man. One of these was to stop and look if the smoke over the nearest track was so dense that he could not see whether there was an engine approaching. Fletcher v. Fitchburg R. Co., 149 Mass. 127, 134. He was warned that that track as

well as the other might be specially dangerous at that moment. He was not acting under any excitement which might

excused a misjudgment, as in Copley v. Northampton Co., 1 36 Mass. 6. He elected to go forward on the strength of a glance, when the train was so close upon him as to run him down before he could cross the track.

The distinction between negligence and gross or willful negligence is a distinction of degree, and therefore, of course, the latter cannot be defined once for all. But the same thing is true of the distinction between negligence and intent in ordinary cases. Yet the distinction exists, and may make the difference between manslaughter and murder. White v. Duggan, 140 Mass. 18, 20. Com. v. Pierce, 138 Mass. 165, 178. It seems to us that the negligence of the plaintiff in the present case was of the higher degree. In Wheelock v. Boston & A. R. Co., 105 Mass. 203, the train which ran the plaintiff down was running at unusual speed, and there was thought to be Some evidence of an invitation to him to cross the track as he did. But here the defendant hardly can be said. to have invited the plaintiff to cross the track, seeing that its only act was to shut the gate in his face. Exceptions overruled."

Passenger Run Over at Station-Evidence as to Rule Forbidding Trains to Pass Between Station and Another Train.-In Lake Shore & M. S. R. Co. 7. Ward (Ill. Jan. 22, 1891,) 26 N. E. Rep. 520, plaintiff,was a passenger suing for personal injuries. He charged in his declaration that the defendant was negligent in carelessly and improperly managing its locomotive, and in failing to provide suitable platform and railing for the safety of its passengers. Held, that a rule of the defendant company forbidding trains and engines to pass between a station and a passenger train which is receiving and discharging passengers, is admissible in evidence as tending to establish the charge of negligence, although not set out in the declara

tion.

Man Walking Towards Station with Intention of Buying Tickets is Not a Passenger. A man walking towards a railroad station with the intention of buying a ticket and taking a train after he gets there, is not a passenger before he reaches the station, even if he might be one in the same place if he had begun his journey. June v. Boston & A. R. Co. (Mass. Jan. 9, 1891), 26 N. E. Rep. 238.

HUNTER et al.

v.

COOPERSTOWN & SUSQUEHANNA VALLEY R. Co.

(New York Court of Appeals, March 10, 1891.)

Passenger Boarding Moving Train-Contributory Negligence. If a person standing upon a station platform in a safe position and under no stress of circumstances, attempts to get upon a train moving past him, at no matter what rate of speed, while in such proximity to a higher and projecting freight platform as to render the consequences of a false or misstep possibly, if not certainly, serious, such person alone is responsible for any injury which may result to him, and the railroad company is not liable if he is killed while making such attempt, although it is made at the direction of the conductor of such train.

APPEAL from Supreme Court, General Term, Fourth Department.

Action by Delora M. Hunter and another, as administrators, against the Cooperstown & Susquehanna Valley Railroad Company, for damages for the death of plaintiff's intestate. Plaintiffs obtained judgment. Defendant appeals. E. M. Harris, for appellant. Carlton B. Pierce, for respondents.

GRAY, J.-Upon a previous occasion we reversed a judgment recovered by these plaintiffs, and ordered a new trial, upon the ground that the act of the deceased in atCase stated. tempting to board the moving train was reckless and dangerous,, and contributed to the resulting injury. 112 N. Y. 371. As the case was then presented, the fact was established by the evidence for the plaintiffs that the speed of the train was from four to six miles an hour at the time the deceased jumped on, and, though it was substantially admitted that the attempt was negligence on his part, it was argued that the act was justified because requested or directed by the conductor of the train. That direction was in these words: "If you are going, jump on." But we held that that circumstance constituted no excuse for the dangerous act, inasmuch as it created no emergency calling for the immediate exercise of judgment in the choice between two dangers, and that it amounted to nothing more than a notification that the train would not stop or go slower. Upon this appeal the plaintiff's endeavor to sustain another judgment recovered against the company upon the new trial. They say that the