within one minute from the time of starting an accommodation passenger train from a station, another train running at the rate of thirty or more miles an hour should pass the same point.' A railroad company may be guilty of negligence in permitting a train to enter a station and pass a car delivering passengers, although it is on the side of such car opposite the station. To run a train at a high speed past another discharging passengers likely to step directly into its path, without warning, would be not only neglect of common care, but recklessness and gross negligence." The fact that persons are liable to be upon a railroad track at a particular locality where a train is to pass when known to the managers of the train, imposes a duty of watchfulness upon them which they would ordinarily not be under.* It is the duty of the conductor of an accommodation train and of the engineer to know whether the express train will pass the station while their train is there, and if so it is their duty to look out for the express train and to signal if it is near; and it is also their duty to see that the passengers should be prevented from leaving the train, on the side next to the track of the express train or at least to give them notice of the approaching train and to request them either to sit still until that train has passed or to leave the train on the other side, and the omission to do so is negligence.' The plaintiff's testator was run over and killed at the carriers station, by the engine of a freight train, belonging to the defendant, moving southerly at the rate of from twenty to thirty miles an hour. He was a passenger on a train going northerly from the Exchange street station, Buffalo, to La Salle, and beyond, and had traveled three miles of the distance when he reached the Ferry street station where the train was accustomed to stop for the purpose of taking on and letting off passengers. As the passenger train reached the station house, after it had been called by the brakeman and while it was going slowly, but had not yet entirely stopped, the deceased stepped down from the second car upon its westerly side upon a plank walk, or platform, 'Gonzales v. New York & H. R. Co. 38 N. Y. 440, 39 How. Pr. 407. Goldberg y. New York, C. & H. R. R. Co. (Sup. Ct.) 15 N. Y. Supp. 579. Robostelli v. New York, N. H. & H. R. Co. 33 Fed. Rep. 799. Cassida v. Oregon R. & Nav. Co. 14 Or. 551. and proceeded along by the side of the moving train for some forty or fifty feet, when he attempted to cross over the westerly track. Before this the passenger train had entirely stopped. When he reached a point about ten feet from the passenger train, and being then between the rails of the westerly track, he was struck by the engine of the freight train, which was backing down in a rapid manner. The whole transaction occurred in front of the station house and within the station yard, upon ground where passengers were accustomed to pass and repass in going from and coming to the trains. The rules of the defendant required freight trains to approach stations slowly, and to stop before reaching stations at which a passenger train is landing or receiving passengers. The freight train came from the north, and at the distance of about 300 feet from the station was visible, although partially concealed from the view of those standing at the station by a curve in the road, and also by trusses upon a bridge over a street running immediately north of the station grounds, which trains going south were obliged to cross before reaching the station. The deceased was, when struck, about twenty feet south of the bridge. He was seen walking quite rapidly to the north in the direction of the approaching train, when he turned and started to go across the track, and as he saw the train attempted to jump but failed to prevent a collision, and was struck while in the act of jumping to avoid it. It did not appear for what purpose the deceased was going across the westerly track, but it was stated that he sometimes got off and communicated with relatives or friends who lived next the station yard on the west side as he passed up the road. As the deceased walked along the track he was necessarily looking in the direction from which the freight train was approaching, but no positive proof was given that he looked towards it immediately before he was struck; and it is not probable that he could have seen it if he had looked when he first alighted, or for some seconds after. Not to exceed ten seconds elapsed between the time when he alighted from the train and that when he was struck, and during that time the engine of the passenger train was exhausting its steam, making a loud noise. The freight train was running probably at the rate of forty feet a second, and when the deceased first alighted was probably beyond the line of his vision. The case was in all of its aspects one for the jury, and it was held to be immaterial whether the deceased, when he alighted from a passenger train, ceased to be a passenger or not. He was certainly neither a wrong-doer nor a trespasser by so doing. He might thereby have subjected himself to increased risks for which he would have no redress against the railroad company; but if he should be afterwards killed by the gross negligence of the company without fault on his part, the company would be liable.' It is negligence in permitting an express train, when it is perceived from it that an accommodation train is at a station going in an opposite direction, to continue on and pass the station at its usual rate of speed, and it is the duty of its conductor or engineer under such circumstances to slack its speed or stop before reaching the station. The omission of the express train in such a case to ring the bell or sound the whistle in passing the station is also negligence. It was the invariable custom of the agent at the depot of the defendant to part freight cars immediately after they were left or placed on a switch at a point nearly opposite the passenger depot for the purpose of affording passage to the patrons and employés of the road, over a path which reached the depot platform. At no time was anything said or done by the defendant's agents or employés to convey to the public the idea that they should not cross the track at these openings. On the morning of the accident there were standing on the switch, two or more cars west of the road and five cars east. These five cars had been parted on the preceding day by the company's agent, a distance of eighteen inches or more, about midway between the platform and the steps at the southeast corner of the platform of the passenger depot, for the express purpose of allowing people to pass over the track. The plaintiff was on his way to the depot to meet his brother who was expected home on the train; and while in the act of passing over the track was caught between the cars and killed, by the sudden and rapid backing of the engine which drove the cars together. The circumstance that the cars were 1Parsons v. New York Cent. & H. R. R. Co. 3 L. R. A. 683, 113 N. Y. 355. 2 Gonzales v. New York & H. R. Co. 38 N. Y. 430, 39 How. Pr. 407. habitually separated at this point, when taken in connection with the location of the steps to the platform, of the passenger depot, and the constant and uninterrupted use of the same by personsgetting on and off at this depot, which was never at any time discountenanced by the road or its officials, to whom it was known, was ruled to be susceptible of no other construction than that it was designed as a path by means of which access might be gained to the depot, as well by persons having occasion to visit the depot as by the employés of the company; and that under these circumstances it cannot be imputed to the deceased as negligence, if, in the absence of some warning he selected this route rather than another and longer one around by the freight depot. Under such circumstances it is clear that an obligation was imposed upon the company that it should not become a source of danger to those to whom it had held it out as a passage or way through which they might safely go, and a duty was imposed upon the company to notify persons entitled or invited to use it, in some unmistakable way, that it was about to be closed, before closing it. A recovery against the defendant was sustained.' Nichols v. Washington, O. & W. R. Co. 83 Va. 99. See Louisville, N. O. & T. R. Co. v. Thompson, 64 Miss. 584. CHAPTER VIII. DUTY OF CARRIER AT STATION. 47. Announcement of Stations. $48. Duty to Stop at Stations. § 49. The Train must be Stopped at a Proper and Safe Place. § 50. Train must Stop at Station a Reasonable Time. § 51. Must Provide Safe and Clear Passage from Train to Eating Station. 847. Announcement of Stations. A railroad company should have its stations plainly announced, a sufficient time before reaching the depot, to enable passengers to prepare for departure from the train, with their personal baggage, without the haste that involves them in peril.' For failure to give proper notice involving a passenger in an exposure to inconvenience, to avoid which he is injured in leaving the train, under circumstances which would not have deterred a person of ordinary prudence from attempting to alight, the carrier will be responsible. But a passenger carried two miles beyond a flag station by his own fault in failing to notify the conductor that he wished to get off there cannot recover where the latter offered to carry him to the next station, or to let him get off and walk back, which latter proposition he accepted.❜ A conductor has no right to assume, because he does not see a passenger in the coach on looking into it, that he has leaped out in the dark upon a moving train, but it is his duty to know that he has a passenger for a station and to have the station announced, and stop the train.* A railroad company carrying passengers is liable for damages 1Dawson v. Louisville & N. R. Co. (Ky.) 11 Am. & Eng. R. Cas. 134; Southern R. Co. v. Kendrick, 40 Miss. 374; Fairmount & A. St. Pass. R. Co. v. Stutler, 54 Pa. 375; Pennsylvania R. Co. v. Aspell, 23 Pa. 147. Delamatyr v. Milwaukee & P. du C. R. Co. 24 Wis. 578. Gulf, C. & S. F. R. Co. v. Ryan (Tex. App.) March 23, 1892. |