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pied seats.” But when no such request is made and the notice required by statute in many of the states is not given, it is not negligence per se for a passenger to ride on the front platform of a moving car.' Especially where the car is crowded.' But a passenger on a railroad train who goes on the platform of a car in violation of a posted regulation warning passengers not to do so, and is thrown off by the starting of the train while he is standing without holding to the railing, cannot recover against the company."

A passenger jarred from a caboose platform by concussion in switching, when there was no necessity of his leaving his seat within to stand upon the platform, is guilty of contributory negligence.'

A passenger on a railroad train who stands upon the platform while the car is in motion, in violation of a regulation known to him, does so at his own peril.'

Where under reasonable apprehension of collision the passenger is injured while on the platform, in an effort to escape, the carrier can not take advantage of the fact, if its own negligence contributed to the danger.' A passenger under certain circumstances may regard a platform as a safe place for him; and one rightfully standing on the platform having just arrived in the depot from another train, may recover for injuries caused by being struck by a car projecting over the platform.

A passenger is not guilty of negligence in riding upon the step "Graville v. Manhattan R. Co. 7 Cent. Rep. 772, 105 N. Y. 525; Hibbard v.

New York & Erie R. Co. 15 N. Y. 463; Alabama G. S. R. Co. v. Hawk, 72 Ala. 112; Clark v. Eighth Ave. R. Co. 36 N. Y. 135; Putnam v. Broadway & S. Ate. R. Co. 55 N. Y. 108; Wills v. Lynn & B. R. Co. 129 Mass.

351. * Colegrove v. Nero York & N. H. R. Co. 6 Duer, 382, 20 N. Y. 492; Nolan v.

Brooklyn City & N. R. Co. 87 N. Y. 63; Covington Transfer Co. v. Kelley,

36 Ohio St. 86. * Werle v. Long Island R. Co. 98 N. Y. 650; Germantown Puss. R. Co. v. Wal.

ling, 97 Pa. 55; Thirteenth & F. St. Pass. R. Co. v. Boudrou, 92 Pa. 475. Malcom v. Richmond & D. R. Co. 106 N. C. 63; Louisville & N. R. Co. v.

Bisch, 120 Ind. 549, 41 Am. & Eng. R. Cas. 89. Smotherman v. St. Louis, 1. M. & 8. R. Co. 29 Mo. App. 265. McCuuley v. Tennessee Coal & I. R. Co. 93 Ala. 336. Buel v. New York Cent. R. Co. 31 N. Y. 313; Wilson v. Northern Pac. R. CO.

26 Mino. 278; South Western R. Co. v. Paulk, 24 Ga. 356; Oliver v. La

Valle, 36 Wis. 592. Archer v. New York, N. H. & H. R. Co. 9 Cent. Rep. 233, 106 N. Y. 589.


of a street car while it is in motion; while waiting for it to come to a stop after he has signaled the driver so to do.'

A railroad company is liable to a passenger who, on being told to alight at her station, went upon the platform in the dark, with a child in her arms, and was there told to remain, and was injured by the violent closing of the car door upon her hand, caused by the violent motion or jerk given to the train by the negligence of its employés.

It is said of passengers, “If they voluntarily take exposed positions with no occasion therefor nor inducement thereto caused by the managers of the road, except a bare license by non-interference, or without express permission of the conductor, they take the special risk of that position upon themselves.” But in another case it has been said that a railroad company cannot attribute negligence to a passenger in standing on the platform of its car, in an action for personal injuries received by him in being thrown therefroin by a sudden start, when its conductor saw him in that position and collected his fare without objection. Still a passenger riding upon the platform of a railroad car with the permission of the company mnst exercise care and caution in accordance with the danger of his position; but the company is bound to guard him from danger incident to the position and arising from its own acts. A passenger who is unnecessarily and improperly upon the platform of a railroad car, knowing that the train is about to start, and who is thrown down and injured by the starting of the engine with no unusual or unnecessary jerk, cannot recover therefor. As a general rule voluntarily and unnec


Medler v. Atlantic Ave. R. Co. 36 N. Y. S. R. 89, aff’d in 126 N. Y. 669,


? Kentucky & 1. Bridge Co. v. Quinkert, 2 Ind. App. 244. 8 Sweeny v. Old Colony & N. R. Co. 10 Allen, 368. See also Hickry v. Bos.

ton & L. R. Co. 14 Allen, 433; Abend v. Terre Haute & 1. R. Co. 111 Ill.

202. Olivier v. Louisville & N. R. Co. 43 La. Ann. 804. Torrey v. Boston & A. R. Co. 147 Mass. 412; Hickey v. Boston & L. R. Co.

14 Allen, 429; Gavett v. Manchester & L. R. Co. 16 Gray, 501; Todd v. Old Colony & F. R. R. Co. 3 Allen, 18, 7 Allen, 207; Lucas v. New Bedford & T. R. Co. 6 Gray, 64; Gahagan v. Boston & L. R. Co. 1 Allen, 187; Mayo v. Boston & M. R. Co. 104 Mass. 137; Bates v. Old Colony R. Co. 6 New Eng. Rep. 583, 147 Mass. 255. See notes to Erickson v. St. Paul & D. R. Co. (Minn.) 5 L. R. A. 786; Evans V. Adams Exp. Co. (Ind.) 7 L. R. A. 678: Philadelphia, W. & B. R. Co. v. Anderson (Md.) 8 L. R. A. 673; Becke v. Missouri Pac. R. Co. (Mo.) 9 L. R. A. 157; Gordon v. Cummings (Mass.) 9 L. R. A. 640.

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essarily to stand or ride on the platform of a car is such negligence as will prevent a recovery for injuries received while there." Yet it has been held not negligence if there are no vacant seats inside the car. But the true rule is that it is the duty of a passenger to go inside the car when requested to do so by the conductor, although there may be no unoccupied seats.' If there is only standing room in the car it has been held in some states to be negligence to occupy the platform.


If the passenger rides where he has no right to ride, by the rules of the company, or in a place of great danger, the mere knowledge or consent of the conductor or trainmen to his riding there will not entitle the plaintiff to any greater rights against the company, on account of any injury received by him while so riding, than if the conductor and trainmen had been wholly ignorant that he was so riding.'

Failure of a railroad company to have a brakeman upon a platform of a car, where its rules do not require a brakeman to be, is not negligence which renders it liable for the death of a passenger who unnecessarily goes upon the platform while the train is moving rapidly, and is thrown therefrom by the motion of the train. A passenger on a railroad train who leaves a place of safety in the car, and voluntarily goes upon the unguarded end platform while the train is running rapidly, and who knows that the train will stop at his station and has not yet arrived there, is guilty of negligence per se which will prevent recovery for his death from being thrown from the platform by the motion of the car, although his station was called before he started for the platform.'

$ 125. Injury about Passenger Elevator. One who is chargeable with contributory negligence in not Beach, Contrib. Neg. 159, citing Alabama G. S. R. Co. v. Hark, 72 Ala.

112; Quinn v. Iúinois Cent. R. Co. 51 Ill. 495; McAunich v. Mississippi & M. R. Co. 20 Iowa, 338; Higgins v. New York & H. R. Co. 2 Bosw. 132; Buel v. New York Cent. R. Co. 31 N. Y. 314; Camden & A. R. Co. v.

Hoosey, 99 Pa. 492. * Highland Ave. & B.R.v. Co. Donovan (Ala.)Nov.5, 1891; Willis v. Long Island R.

Co. 34 N. Y. 670. Consult also Zemp v. Wilmington & M. R.Co. 9 Rich. L. 84. 3Graville v. Manhattan R. Co. 7 Cent. Rep. 772, 105 N. Y. 525. *Quinn v. Illinois Cent. R. Co, 51 III. 495, and Cam len & A. R. Co. v. H100.

sey, 99 Pa. 492. * Doroney v. Chesapeake & 0. R. Co. 28 W. Va. 732. * Herdman v. New York, L. E. & W. R. Co. 42 N. Y. S. R. 293.

having adjusted the machine properly for running an elevator of which he has charge, cannot recover for his injury.'

A person who took an elevator which he knew was not intended for passengers, and, on leaving it, closed the door leading from the elevator well, then, as he returned in a great hurry, hearing some one speak to him, turned quickly around without looking, stepped out into the well and fell, is guilty of negligence which will prevent any recovery for damages, even if he was entitled to ride upon the elevator.'

Whether a person is guilty of contributory negligence, or not, in stepping into an elevator well, in the daytime, where, from the outer edge of the first step in front of the door to it, to the shaft, was less than 3 feet, and the door, which was of solid wood, was partially open as he approached, disclosing sufficient flooring to create the impression that it was continuous,-is a question for the jury.'

A tenant approaching an elevator shaft kept in the building for the use of tenants, and operated by the landlord or his servants, is not, as matter of law, guilty, of contributory negligence in stepping through the door of the shaft without looking or listening for the elevator, where it is opened on the outside by a boy who has often had charge of the elevator, and whom defendant sup poses to be on the elevator, the elevator shaft not being lighted.

In an action against the landlord of plaintiff's husband, for injuries sustained by falling down the shaft of an elevator kept for the use of the tenants, and operated by the landlord or his servants, proof that plaintiff went to the door of the shaft, intending to go up, when it was opened from the outside by a boy who often had the elevator in charge, and the plaintiff thereupon stepped through the door supposing the elevator to be there, when it was in fact above, and that she fell to the bottom of the shaft and was injured, the shaft not being lighted, warrants the submission of the case to the jury upon a question of fact as to defendant's negligence.

Hammergren v. Schurmeier, 2 McCrary, 520, 7 Fed. Rep. 766.

Pallerson v. Hemenway, 148 Mass. 94. 3 Mc Rickard v. Flint, 114 N. Y. 222. * Tousey v. Roberts, 114 N. Y. 312.




$ 126. Instinctive Effort to Escape Peril not Contributory Negligence. 8 127. Carrier's Negligence will Excuse Otherwise Rash Act. 8 128. Negligence of Another Carrier Causing Injury. $ 129. Fault of the Carrier must Occasion the Danger

$ 126. Instinctive Effort to Escape Peril not Con

tributory Negligence. An instinctive effort to escape peril, caused by carrier's default is not contributory negligence. A man is not necessarily to be regarded as having caused or contributed to his own injury by acting in a manner prima facie dangerous and imprudent, if there is evidence of acts or omissions by which he might have been put off his guard,' or overcome by sudden terror.

In a well known case while the coach was proceeding at a moderate rate, and without coming in contact with any obstacle, or meeting any special obstruction, the hind axle of the coach broke, one of the wheels came off and the stage settled down on one side, without being overset. The plaintiff and some other outside passengers, being alarmed, jumped from the top of the coach upon the pavement, and the plaintiff's left arm was broken. It being shown that great care had been taken in the manufacture of the stage to secure one that was strong, sound and sufficient for the journey, and that the proprietors had uniformly exercised the utmost vigilance and care to preserve and keep the same in a safe and roadworthy condition, the judge directed the jury to inquire whether the plaintiff's act in jumping off was, under the existing circumstances, an act of reasonable precaution; *Dublin, W. & W. R. Co. v. Slattery, 39 L. T. N. S. 365. And see North

Eastern R. Co. v. Wanless, L. R. 7 H. L. 12; Flint & P. M. R. Co. v.
Stark, 38 Mich. 714; Price v. St. Louis, K. C. & N. R. Co. 72 Mo. 414;
Texas & P. R. Co. v. Garcia, 62 Tex. 285; Straus v. Kansas City, St. J. &
C. B. R. Co. 75 Mo. 185; Clotworthy v. Hannibal & St. J. R. CO 80 Mo.
223; Ernst v. Hudson River R. Co. 35 N. Y. 28; Purcell v. St. Paul City

R. Co. (Mion.) 16 L. R. A. 202. 'Ingalls v. Bills, 9 Met. 1.

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