ery from the carrier for an injury growing out of it.' A passenger who is injured by falling into a ditch when alighting from a railroad train, on the opposite side from the depot building and the platform provided by the company for exit from or entrance to its trains, cannot recover from the company. Ordinary care is required of a passenger in alighting from a train and leaving the platform; and in the absence of such care no recovery can be had for injuries sustained by falling over a raised portion of the platform. A railroad passenger who, upon the train stopping on a trestle over a gulch or canyon, for a moment in the night time, without any intimation from the trainmen that it is his stopping place or that he should get off, but judging from the movements and remarks of other passengers that it is his stopping place, heedlessly jumps off the train without taking time to look about him, is guilty of such contributory negligence as will prevent a recovery for injuries received. A passenger who, without looking or listening for approaching trains, leaves his train voluntarily while it is in motion and before it is time to stop, gets off and is run against by an engine following his train on a parallel track, contributes directly to the injuries received by him."

As the question of negligence on the part of the defendant is one of fact for the jury to determine, under all the circumstances of the case, and under proper instructions from the court, so also the question of whether there was negligence in the injured person which was the proximate cause of the injury, is likewise a question of fact for the jury to determine, under like rules. The determination of what was such contributory negligence on the part of the injured passenger as would defeat his action, or perhaps, more accurately speaking, the question of whether the injured passenger at the time of the accident, was, under all the circumstances of the case, in the exercise of such due care and diligence as would be expected of a reasonably prudent and careful person, under similar circumstances, is no more a question of law for the court than is the question of negligence on the part of 'Dodge v. Boston & B. SS. Co. 2 L. R. A. 83, 148 Mass. 207. Drake v. Pennsylvania R. Co. 137 Pa. 352.

'Graham v. Pennsylvania Co. 12 L. R. A. 293, 139 Pa. 149. Nagle v. California S. R. Co. 88 Cal. 86.

Dewald v. Kansas City, Ft. S. & G. R. Co. 44 Kan. 586.

the carrier. There is no more an absolute standard of ordinary care and diligence in the one instance than in the other. This rule is sustained by the authorities;' and its correctness is apparent from an examination and analysis of the generally accepted definitions of contributory negligence, as laid down by the courts and by text-writers. Without now going into a discussion of these definitions, or even attempting to collate them, it will be sufficient for present purposes to say that the generally accepted and most reasonable rule of law applicable to actions in which the defense is contributory negligence may be thus stated: although the defendant's negligence may have been the primary cause of the injury complained of, yet an action for such injury cannot be maintained if the proximate and immediate cause of the injury can be traced to the want of ordinary care and caution in the person injured; subject to this qualification, which has grown up in recent years,' that the contributory negligence of the party injured will not defeat the action if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party's negligence.'

§ 116. When will Preclude Recovery.

In addition to what has been said in the preceding section the general rule may be laid down that the passenger's right to recover is precluded when his omission to employ his senses contributes to the injury; that is when by their employment he might have avoided the jury.*

One injured by the negligence of a carrier cannot recover if the

'Mynning v. Detroit, L. & N. R. Co. 64 Mich. 93; Underhill v. Chicago & G. 1. R. Co. 81 Mich. 43; Baker v. Flint & P. M. R. Co. 68 Mich. 90; Engel v. Smith, 82 Mich. 1.

Davies v. Mann, 10 Mees. & W. 546.

'Grand Trunk R. Co. v. Ives, 144 U. S. 408, 36 L. ed. 487; Inland & 8. Coasting Co. v. Tolson, 139 U. S. 551, 558, 35 L. ed. 270, 272, and cases cited; Donohue v. St. Louis, I. M. & S. R. Co. 91 Mo. 357, 8 West. Rep. 628; Vicksburg & J. R. Co. v. Patton, 31 Miss. 156; Deans v. Wilmington & W. R. Co. 107 N. C. 686; 2 Thomp. Neg. 1157; Cooley, Torts (1st ed.) 675; 4 Am. & Eng. Enc. Law, title "Contributory Negligence," 30, and authorities cited in note 1.

Baltimore & O. R. Co. v. Whitacre, 35 Ohio St. 631; Cleveland, C. & C. R. Co. v. Crawford, 24 Ohio St. 638; Lake Shore & M. S. R. Co. v. Miller, 25 Mich. 274.

accident could have been avoided by due care on his own part.' But negligence of a passenger does not excuse a carrier from liability to him for injuries from its negligence, which he would have sustained had he not been negligent. It is however no part of the province of a passenger on a railroad to interfere in any way with the management of the train, and failure to pull the bell rope and signal approaching danger will not prevent his recovery for injuries occasioned by the negligence of the employés in charge of the train, although if he had done so the accident might have been avoided.'

To maintain an action in case of concurrent negligence it must appear either that defendant might by a proper degree of caution have avoided the consequences of the injured party's neglect, or that the latter could not by ordinary care have avoided the consequences of defendant's negligence; and in such case defendant must have had time to become aware of the conduct and situation of plaintiff. A woman having a weak knee, who, without telling that fact, injures it by alighting from a car step 26 inches from the ground, there being no platform at the place, cannot recover where a brakeman assisted her with the care which was usual and proper for ordinary people."

Even in states where the doctrine of comparative negligence is recognized it is held that an instruction to the effect that if plaintiff failed to exercise ordinary care, and if by the exercise thereof he could have prevented the injury, he cannot recover unless defendant was guilty of gross negligence, is erroneous in that it implies that gross negligence on defendant's part would obviate the necessity of ordinary care on the part of plaintiff."

Where a newsboy got upon a street railway car at the rear end to sell papers, passed through the car to the front platform where the driver was standing, stepped one side behind the driver and fell off behind the car, there being no step on that side and was killed by the car running over him, it was held that deceased

1 Wallace v. Wilmington & N. R. Co. (Del.) Dec. 13, 1889.

2 Carrico v. West Virginia C. & P. R. Co. 35 W. Va. 389.
Grand Rapids & I. R. Co. v. Ellison, 117 Ind. 234.
Holohan v. Washington & G. R. Co. 8 Mackey, 316.

B McGinney v. Canadian Pac. R. Co. 7 Manitoba Rep. 151.
Toledo, St. L. & K. C. R. Co. v. Cline, 135 Ill. 41.

was lawfully in the car, being entitled to be carried safely, whether he was a passenger for reward or not, and that there was evidence for a charge of negligence on the part of the defendants in the absence of a step at that place and no such contributory negligence on the part of the deceased as should, as a matter of law, prevent the plaintiff's recovery, and a nonsuit was therefore set aside. In reviewing some of the decisions, reference was made to another case in which Chief Baron Kelly has said: "If there is evidence of negligence on the part of defendants and of contributory negligence on the part of plaintiff, that must always be a question for the jury, and it is not a case for a nonsuit." In this case plaintiff was a passenger on defendant's railway and got up from his seat to put his hand on a bar passing across the window of the carriage, with the intention of looking out to see the lights at the next station; the pressure caused the door to fly open plaintiff fell out and was injured. To apply the principles of this case to the present, can it be said that beyond doubt, or controversy that the deceased did anything in the way of a perilous act voluntarily? He had the right to assume that the defendant's were not guilty of negligence, that the car and every part of it on which he was traveling, was fit for the purposes for which it was being used, and so assuming would, without looking, naturally put his feet on the place where the step ought to have been and where it would have been had there been no negligence on the part of defendants. As said by Chancellor Johnson, “A passenger upon such a vehicle, has a right to assume that the parts of the vehicle are proper for the use of passengers and designed to receive them while in transit and are suitable and safe for the purpose; under these circumstances I do not think the omission of the deceased to see the want of a step can, as matter of law, be said to be contributory negligence. . . If the deceased were only in this particular car on sufferance or by permission, not as a passenger but merely to ply his trade of selling papers, the company would be liable to him as to an ordinary passenger for any injury caused by reckless driving or negligent management of the car; but I am unable to see any breach of duty on their part to

Blackmore v. Toronto St. R. Co. 38 U. C. Q. B. 172.
Gee v. Metropolitan R. Co. L. R. 8 Q. B. 168.

him as to the absence of a step, or the general state of the vehicle so long as at least, it was not in such a state as to be a mere trap for any person going off or onto it. . . To a mere volunteer like a newsboy permitted to run through the car to sell his papers, the absence or presence of a step in the vehicle gives no cause of action. The law seems reasonably clear on this point." Bramwell, B., also said: "I quite concur in the rule laid down in the cases that where a person is a mere licensee he has no cause of action on account of the dangers existing in the place he is permitted to enter." The whole case turns on the question of fact, in what character was deceased on the car, as a passenger on a particular carriage or as a mere volunteer or licensee selling papers for his own purposes by the permission or sufferance of defendants. It is hardly a fair argument to assume him rightfully there as a passenger till fare was demanded.'

§ 117. At Stations or Approaching or Leaving Them.

It is the duty of the carrier to make the place for receiving passengers reasonably safe and secure, and a passenger waiting at a station for his train is not negligent because he does not remain in the waiting-room, but goes out upon the platform.'

Where the evidence was that no mischief had resulted for five years from keeping a portable weighing machine used for weighing passengers' baggage on their platform, quite out of the course of transit, standing against a pillar which passengers passed in going to and coming from the train, although the foot of the weighing machine projected about six inches above the level of the platform, the company might reasonably have anticipated that no injuries could occur. And where the plaintiff, being at the station on Christmas day inquiring for a parcel, was driven by the crowd against the machine, caught his foot and fell over it, as the evidence showed that the machine was in a situation in which it might have been seen, the case was properly taken from the jury on the ground that there was no evidence justifying a verdict

'Spooner v. Brooklyn City R. Cɔ. 54 N. Y. 230, 13 Am. Rep. 572. Holmes v. North Eastern R. Co. L. R. 4 Exch. 257.

Chicago & A. R. Co. v. Woolridge, 32 Ill. App. 237.