at bar the deceased could have waited for another train; but surely this difference in the circumstances cannot change what was held to be a question of fact in the former case into a question of law in this. The highest court in at least three of our sister states has passed upon this question, and in each case it has been held to be one of fact. In Johnson v. West Chester & P. R. Co., 70 Pa. St. 357, a passenger attempted to board a train moving at from three to four miles an hour. There was no invitation to enter the car. It was held that it was for the jury to say whether the danger of boarding the train when in motion was so apparent as to make it the duty of the passenger to desist from the attempt. Where the conductor failed to stop the train at the platform where passengers landed, and when the train was moving at from two to four miles an hour, he told a passenger to get off, who obeyed his direction, and was killed, it was held that this act was not in law negligence but was a question for the jury. Lambeth 2. Railroad Co., 66 N. Car. 494. In another case a young, vigorous man stepped down from a moving train. He had a valise in one hand and a basket in the other. There was no direction from any servant of the company. In an action to recover for injuries received, it was held that it was a question for the jury whether he exercised due care. Railroad Co. v. Maugans, 61 Md. 53. I think that the act of the deceased in attempting to board the train upon the invitation of the conductor, and under all the circumstances disclosed in this case, presented a question of fact for the jury, and not a question of law. The judgment in this case cannot be disturbed unless we are prepared to decide that the deceased was in law guilty of negligence in attempting to board the train in the manner and under the circumstances stated. The evidence of negligence on the part of the defendant is precisely the same now as when the case was here before. On that appeal Judge PECKHAM said: "It was the duty of the railroad company (having advertised so to do) to stop its trains at the station in question, and to give ample time to all persons desirious of getting on or leaving at that station to do so." And again, referring to the invitation of the conductor to get on the train, he said: "It may be assumed that this direction implied a notice to the deceased that the train would not stop at that station, and that unless he attempted to get on while the car was thus in motion he would be left at the station, and compelled to take another and a later train. It may be assumed that in giving this direction, and in failing to stop the train, the company was chargeable with negligence." The point that the trial judge submitted nothing to the jury except the evidence as to whether the conductor did or did not

invite the deceased to get on the train is utterly untenable. The jury were expressly charged to inquire upon the evidence whether the defendant failed to perform its duty to the deceased in not bringing the train to a stop, and, upon the question whether a safe opportunity was afforded to the defendant to get upon the train, they were to consider the evidence in regard to the invitation of the conductor. At the end of the charge the defendant's counsel requested the court to instruct the jury that, in case they found that the conductor did not invite the deceased to get aboard the train, their verdict must be for the defendant, as that ended the case, and this request was allowed. This did not withdraw from the jury the evidence bearing upon the failure of the defendant. to stop, or any other question previously submitted, but was, in effect, an instruction that, although the defendant failed in its duty to stop the train at the station, yet there could be no recovery unless the conductor invited the deceased to get on. If there was any error in this part of the charge it was in favor of the defendant, and cannot now be used for the pur. pose of reversing the judgment. The judgment should be affirmed.

RUGER, C. J. and ANDREWs, J., concur.

Attempt to Board Moving Train-Contributory Negligence as a Matter of Law. In Bacon v. Delaware, L. & W. R. Co. (Penn., May 27, 1891,) 21 Atl. Rep. 1002, it was held to be negligence as a matter of law for a passenger to attempt to get upon a train of cars while they are in motion. Accordingly where all the testimony on both sides shows that the passenger, for whose death the action is brought, was killed while attempting to get upon a moving train, it is proper to instruct the jury to find for the defendant.

Same-Failure to Stop at Station-Conductor Causing Train to Suddenly Accelerate its Speed while Passenger is Getting on. In the case of Montgomery & E. R. Co. v. Stewart, (Ala. Dec. 27, 1890,) 8 So. Rep. 708, it was held that in an action against a railroad company for injuries sustained by a passenger while attempting to board a moving train, defendant is liable where it appears that the train instead of coming to a full stop at the station, as it should have done, merely slacked its speed to the rate of about two miles per hour; that while the train was moving at such rate the conductor cried "All aboard!" whereupon plaintiff attempted to board the train; and that, while plaintiff was in such position that any sudden and unexpected acceleration of speed involved great peril to him, the conductor with full knowledge of plaintiff's position caused the train to suddenly start forward, whereby plaintiff was injured,—though plaintiff may have been guilty of contributory negligence in attempting to board the moving train.

The court said: "Conceding, therefore, that plaintiff was negligent in attempting to board the moving train as is alleged in the first count, or in holding on to the railing of the steps and keeping pace with the train, as is alleged in the second count, yet, if the danger might have been avoided by due care on the part of defendant's employes, after they discovered the peril, or if, but for their affirmative act in negligently increasing the speed

of the train, knowing that thereby plaintiff's safety would be imperiled, as they must be holden to have known, the defendant company is liable notwithstanding plaintiff's own original_negligence. 2 Thomp. Tr. § 1683; Williams v. Northern Pac. R. Co., 3 Dakota 168, 11 Am. & Eng. R. Cas. 421; Citizens St. R. Co. v. Steen, 42 Ark. 321, 19 Am. & Eng. R. Cas. 30; Romick v. Chicago, R. I. & P. R. Co., 62 Iowa 167, 15 Am. & Eng. R. Cas. 288; Beems v. Chicago, etc., R. Co., 58 Iowa 150, 10 Am. & Eng. R. Cas. 658; Kelly v. Union, R. & T. Co., 95 Mo. 279, 35 Am. & Eng. R. Cas. 396; Hays v. Gainesville St. R. Co., 70 Tex. 602, 34 Am. & Eng. R. Cas. 97; Indiana, B. & N. R. Co. v. Burdge, 94 Ind. 46, 18 Am. & Eng. R. Cas. 192; Frazer v. South & N. Ala. R. Co., 81 Ala. 185, 28 Am. & Eng. R. Cas. 565. "Moreover, we are by no means prepared to say that on the case as presented by the first count of the complaint and supported by a tendency of the testimony, the plaintiff was guilty of contributory negligence at all. The test in this connection is not always found in the failure to exercise the best judgment, or use the wisest precautions; the influences which ordinarily govern human action are to be considered, and what would under some circumstances be a want of due care would not be such under others. Lent v. New York Cent. & H. R. R. Co., 120 N. Y. 467, 44 Am. & Eng. R. Cas. 373. Indeed, we apprehend that it can in no case be said, as matter of law, to be negligence to get on or off a train moving at a rate of speed not in excess of two miles an hour, Central R. & B. Co. v. Miles, 88 Ala., 256, 41 Am. & Eng. R. Cas. 149, and this wholly irrespective of any invitation or direction to alight or board emanating from employes or deducible from circumstances. In this case, however, it is alleged, and the averment is supported by the testimony offered for the plaintiff, that the conductor. while the train was in motion, and to all appearances would not come to a full stop at all, instructed or directed the plaintiff to get on the cars by calling out to him, "All aboard." The danger of an attempt to board not being obvious, as we have said, the law is well, and has been long, settled that the plaintiff was in no wise negligent or lacking in due care to rely upon the assurance thus impliedly given by the employe, that it was safe to make the attempt to board in compliance with the direction of the conductor. 2 Am. & Eng. Ency. Law, 762; Bucher v. New York Cent. & H. R. R. Co., 98 N. Y. 128, 21 Am. & Eng. R. Cas. 361; Baltimore & O. R. Co. 7. Leapley, 65 Md. 571, 27 Am. & Eng. R. Cas. 167; Lent v. New York Cent. & H. R. R. Co., 120 N. Y. 467, 44 Am. & Eng. R. Cas. 373; Filer v. New York Cent. R. Co., 59 N. Y. 351; Baltimore & O. R. Co. v. Kane, 69 Md. 11; Briggs v. Union St. R. Co., 148 Mass. 72, 37 Am. & Eng. R. Cas. 204; Cincinnati, H. & I. R. Co. v. Carper, 112 Ind. 26, 31 Am. & Eng. R. Cas. 36; Central R. & B. Co. v. Miles, 88 Ala. 256, 41 Am. & Eng. R. Cas. 149.

But, aside from all this, the situation created by defendant's servants, as averred and as supported by the tendencies of the evidence, was in itself an invitation to those waiting at that station for the train to get aboard of it, and in the nature of an authoritative assurance that it was safe for them to do so. Confessedly the train ought to have stopped, was signaled to stop, recognized the signal, and slowed down to a speed of not exceeding two miles an hour in partial obedience to it. Confessedly, also, it did not stop, nor were any indications given of a purpose on the part of those in control of it to come to a full stop, but, on the contrary, a tendency of the evidence goes to show that no intention to fully stop was evinced or even entertained, and to all appearances the only opportunity meant to be afforded plaintiff to get on was such as he might enjoy from the maintenance, while passing the station, of the low rate of speed to which the train had been reduced. That a situation, so to speak, or an aspect of affairs, may be produced by trainmen, which will as fully import an invitation or

direction to action on the part of passengers as would oral instructions by employes, we do not doubt. Solomon v. Manhattan R. Co., 103 N. Y. 437, 27 Am. & Eng. R. Cas. 155. That, if the jury found the facts stated above, and which are alleged in the complaint, to exist, they would have been authorized to find further that an invitation to the plaintiff to board the train was involved in them, is equally clear. So finding, it follows as a matter of course, the danger not being obvious, that plaintiff was not negligent in making the attempt to get on the slowly moving train. Authorities supra. Moreover, if the facts referred to were found by the jury, they involved and served to impose another important duty upon defendant's employes, with respect to the knowledge they must have that no passenger is in a position of danger before accelerating the movement of the train. Ordinarily, the full duty of trainmen in that connection is performed when the train is brought to a standstill for a length of time which is reasonably sufficient to enable passengers to get on or off by the exercise of due care and diligence on their part; when this is done, there is no duty resting on employes to see and know that passengers desiring to alight have done so, or that persons desiring to take passage are safely on board. Raben v. Central Iowa R. Co., 73 Iowa 579, 33 Am. & Eng. R. Cas. 520; Straus v. Kansas City, St. J. & C. B. R. Co., 75 Mo. 185, 6 Am. & Eng. R. Cas. 384, and 86 Mo. 421, 27 Am. & Eng. R. Cas. 170; Gulf, C. & S. F. R. Co. v. Williams, 70 Tex. 159; Pennsylvania R. Co. v. Peters, 106 Pa. St. 206, 30 Am. & Eng. R. Cas. 607.

44

Where, however, a reasonable opportunity is not afforded by holding the train stationary for passengers to get on and off, but they are invited and expected to do so while the train is moving at a low rate of speed, a different rule ought to, and in our opinion does, obtain. An invitation thus conveyed implies, at least, an assurance that the momentum will not be increased until all persons desiring to come aboard have done so, and imposes a correlative duty on those in charge of the train not to increase the speed without knowing that no person intending to act on the invitation is so situated as to be imperiled thereby. They cannot, in other words, acquit themselves by merely maintaining the slow movement sufficiently long for persons with diligence to get on, for this itself is a wrong, and as there is no obligation on the would be passenger to avail himself of such an invitation, though he may do so without negligence, they have no right to assume that he will avail himself of it immediately, or at all, in fact, but they must know that it has been acted on, and that there is no one in an exposed position when the increased motion is imparted to the train. And even were it conceded that the plaintiff was negligent notwithstanding the invitation or direction conveyed to him by the situation, because there was obvious danger in so doing, it was none the less the duty of defendant's employes to see that the status quo was maintained while the effort was being made, and the company would be liable for the consequences of their failure to do so, notwithstanding the prior negligence of the plaintiff. The evidence was conflicting as to whether the train was suddenly started off "with a jerk" while plaintiff was in the act of stepping upon the cars. There was no conflict, however, as to the points that conductor saw the plaintiff when the attempt was made, and that he then signaled the engineer to go forward. The jury may have found that that signal was obeyed, and the train made thereby to lurch suddenly forward, causing the injury complained of. We are not prepared to say but that they might have legitimately reached the further conclusion that the act of the conductor, done with a knowledge of plaintiff's position, was also done with a sense, on the part of the conductor, of the probable consequences of such sudden movement to the plaintiff, and unregardful of his safety. If so, this would be such gross negligence and recklessness on the part of the conductor as

would be the legal equivalent of that wantonness and intentional wrong doing which affords a predicate for the imposition of punitive or vindictive damages. Alabama G. S. R. Co. v. Arnold, 80 Ala. 600, 30 Am. & Eng. R. Cas. 546; Alabama G. S. R. Co. v. Hill, 90 Ala. 71, 44 Am. & Eng. R. Cas. 441; Louisville & N. R. Co. v. Watson, 90 Ala. 68.

BROWNE

V.

RALEIGH & GASTON R. Co.

(North Carolina Supreme Court, March 10, 1891.) Passengers-Freight Train-Place for Receiving Passengers other than Station-Reasonable Regulation.—It is not an unreasonable regulation of a railroad company to require passengers to be received upon a coach attached to a freight train, at some point other than the station or platform from which they usually enter, its passenger cars constituting a part of its passenger trains. Code N. Car. § 1963, recognizes the right of railroad companies to determine their places of receiving passengers.

Delay by Passenger in Getting on Train-Starting Train before Passenger has Boarded It.-The conductor of a freight train which had a passenger coach attached, and which, according to the regulation of the company, did not receive passengers at the platform devoted to passenger trains, directed a passenger to go to the coach and get in it. The conductor then signaled to the engineer to start the train, without waiting to see if the passenger was safely on board. The passenger had not yet got on when the train started, and in attempting to board it while it was in motion, received injuries for which he sued. Held, that the company was not liable, it appearing that the train had already been stopped a reasonable length of time, and that the passenger had willfully delayed to get upon it.

Contributory Negligence in Boarding Moving Train. Where a passenger is injured while boarding a train in motion, he must, in order to avoid an imputation of contributory negligence, show that he did so without manifest risk and that the train did not stop long enough to allow him to get upon it.

THIS was a civil action, brought to recover damages for an injury received while getting on defendant's train, tried at the September term, 1890, of the superior court of Warren county, before WHITAKER, J. The following is the whole of the evidence:

Faulcon Browne, the plaintiff, as witness in his own behalf, testified as follows: "Was at Macon depot on or about the 25th of November, 1889. I purchased a ticket from Macon to Vaughan railroad station from Rodwell, agent of the defendant. In a few minutes the local freight came to Macon. Rodwell asked me if I was going off on that train, and I told him I was. He said to me that I had better get on; that the train would leave pretty soon. I asked Rodwell if it was not the duty of the company to pull the passenger coach to the