General verdict and spe

tion was overruled, and the ruling assigned as error. The answers to interrogatories showed the following facts: That the plaintiff went upon the train to ascial findings. sist Naas, at the request of the family; that the train was in motion before plaintiff left the car in which Naas was seated, and when he was upon the platform and step for the purpose of leaving the train, and that plaintiff knew it was in motion; that the train was moving at the rate of four and one-half miles an hour when plaintiff got on the lower step for the purpose of alighting from the train. The answers to the fourth and fifth interrogatories are conflicting. The fourth interrogatory and answer are to the ef fect that neither the conductor nor engineer in charge of the train and engine knew that plaintiff was on the steps of the car, or that he proposed leaving the train, or that he was in the act of alighting from the train at the time he did attempt to leave it. Interrogatory five and answer are to the effect that the conductor knew the plaintiff was on the train when it started, and that he proposed to leave the train before he had left it. This leaves the interrogatories showing this state of facts, viz: That plaintiff went upon the train to help Naas at the request of Naas' family; that the train was in motion before he left the car, and continued in motion until plaintiff got on the step for the purpose of leaving, and that he knew the train was in motion; that when he was upon the lower step for the purpose of alighting from the train, the train was moving at the rate of four and one-half miles an hour, and that the conductor knew plaintiff was on the train, but did not know he was upon the steps of the car, or was in the act of alighting when he made the attempt to leave the train. The answers to interrogatories did not entitle the appellant to judgment. It is only where there is a direct conflict between the general verdict and the interrogatories and answers thereto, and where the facts found by the answers to the interrogatories entitle the party in whose favor they are to a judgment, that a motion for judgment on the answers to interrogatories, notwithstanding the general verdict, will be sustained. McClure v. McClure, 74 Ind. 108; Grand Rapids & I. R. Co. v. McAnnally, 98 Ind. 412. In the case of Baltimore & O. & C. R. Co. v. Rowan, 104 Ind..88-96, 23 Am. & Eng. R. Cas. 390, it is held that all reasonable presumptions are indulged in favor of the general verdict, while nothing will be presumed in favor of the special findings. Under these well settled principles, which have been universally adhered to by this court, there was no error in overruling appellant's motion for judgment on the answers to interrogatories, notwithstanding the general verdict. All the facts established by the an

swers to the interrogatories might be true, and yet the appellee entitled to recover.

Contributory

It is insisted by counsel for appellant that the answers to interrogatories show that the train of defendant was in motion before the plaintiff left the car in which said. Naas was seated, and when the plaintiff came upon Leaving movthe platform of said car, and when he got on the ing trainsteps of said car for the purpose of leaving it, as negligence. was known to him, and that when plaintiff reached the lower step for the purpose of alighting from the train, it was moving at a speed of four and one-half miles per hour, and that the law is that when a railroad station has been announced, and the train has been stopped, that is an invitation to passengers to alight, and an implied promise and an obligation that the stop shall be long enough to give all passengers a reasonable time to leave the train in safety; but after the train has started from the station, and especially when it has attained a speed which proclaims to every one that the movement is final, there is no longer an invitation to any one to leave the train, and one who thus attempts to leave it does so without the invitation or consent of the railroad company and at his own risk. That the effect of the finding in this case was that the train had acquired such speed at the time the appellee alighted as to proclaim to every one that the movement was final, and that the alighting under such circumstances is conclusive presumption of contributory negli gence, and the appellee cannot recover: and it was the duty of the court to render judgment in favor of appellant. That when the facts show the train to have been moving at the rate of four and one-half miles an hour when a person alights from the train, that the court shall declare as a matter of law that such act of alighting is negligence, and that the person cannot recover, though injury may have resulted to him by reason of the negligence of the employes of the railroad company. We do not concur in this theory of counsel. The fact that a person voluntarily alights from a moving train is not a conclusive presumption of negligence on his part. The rate of the speed the train has acquired, the place, and all the circumstances connected with the alighting, are to be taken into consideration in determining whether or not the person was guilty of negligence on his part in leaving or attempting to leave the train. The degree of speed which would of itself make the person guilty of negligence in one case, and under some circumstances, would not under others. We do not mean to say that the court would not hold that a person who voluntary left a passenger train when in full speed was not guilty of negligence, and that such act alone would be

construed to constitute such contributory negligence as that he could not recover for injuries received; but, like crossing the railroad track, while it might be negligence to attempt to cross the track with horses and vehicle when the train was within a few rods, running at high speed, it might not be when the train was at a much greater distance, and running at a less rate of speed, though it was in sight. It might be negligence to attempt the crossing of a track with horses and vehicle when it would not be to do so on foot. So, too, what one in the full vigor of manhood might do with perfect safety might be hazardous for one who is decrepit with age, or in an enfeebled condition. Whether alighting from a moving train constitutes negligence or not is a fact to be determined by the jury trying the cause, taking into consideration all the circumstances in connection with the alighting. In this case, the passenger, Naas, being in an enfeebled condition, requiring the assistance of others to carry him upon the train and place him in a seat; the defendant's employes, having knowledge of his condition, and observing others carrying him into the car, owed an obligation to those assisting and carrying him into the car to allow the train to remain standing a sufficient time to allow them a reasonable opportunity to leave the train; and to those whose assistance was necessary, and whose services in that behalf were accepted by the passenger, Naas, the company owed the same duty in allowing them a reasonable time to leave the train as it would had they been passengers upon the train, though they voluntarily offered their services. In the case of Evansville & C. R. Co. v. Duncan, 28 Ind. 441, at page 447, the court, in speaking of a person leaving a train while in motion, says: "If the leap was made under such circumstances that a person of ordinary caution and care would not have apprehended danger therefrom, then it was not such an act of carelessness as would relieve the defendant from the responsibility otherwise resting upon it;" and this statement of the law by the court is quoted and approved in the case of Jeffersonville, M. & I. R. Co. v. Hendricks, 41 Ind. 48. In the case of Ohio & M. R. Co. v. Collarn, 73 Ind. 261, 5 Am. & Eng. R. Cas. 554, the court states the rule as to when the question of negligence should be submitted to a jury. See, also, Pennsylvania Co. v. Long, 94 Ind. 250, 15 Am. & Eng. R. Cas. 345; Town of Albion v. Hetrick, 90 Ind. 545.

The first cause for new trial assigned was the giving by the court, at the request of the plaintiff, instructions 1, 2, 3, and 5. We set out some of the instructions. No. 1 is as follows: "If you believe from the evidence that at the time mentioned in the complaint the defendant, for hire, agreed to re

passengers.

ceive, and did receive, on board its train of cars at its passenger station, at Mt. Vernon, Ind., one George Naas as a passenger, and that the defendant had knowl. Obligation of edge that said Naas was at the time so sick and fee- carrier to per sons assisting ble as to render it necessary for him to be carried into defendant's car, and the conductor of said train then present had knowledge or had reasonable grounds to believe that the plaintiff entered said car as an assistant in carrying said Naas therein, and in seating said Naas in said car, then you may find that the plaintiff rightfully entered said car, and that the defendant owed the plaintiff the same duties, while he was rendering said assistance to said Naas, and while he was leaving said car, that it would owe to any of its passengers for hire." This instruction was proper. The defendant, in contracting to carry the passenger, Naas, in his sick and enfeebled condition, contracted an obligation which could only be carried out by Naas being carried upon the train and seated in the car. By thus contracting to carry Naas as a passenger it took upon itself the obligation of allowing him assistants to place him upon the train, and seat him in the car, and the compensation received by the defendant for conveying Naas from Mt. Vernon to his destination included as well the right to have assistants place him in the car as the carrying him after being so placed in the car, and the defendant owed the same obligation to his assistants while necessarily entering and leaving the car with Naas as it owed to Naas himself. Instruction No. 2 states the legal obligation of carriers of passengers for hire, and is not erroneous, in connection with the other instructions. Instruction No. 3: "If you find from the evidence in this case, and under the instructions I have given you, that the plaintiff rightfully entered the car at its station at Mt. Vernon as an assistant in carrying said Naas into said car, and the conductor of the train of which said car was a portion, knew or ought to have known at the time that the plaintiff had in the capacity of such assistant, entered said car, then you should find that it was the duty of the defendant to cause said car to remain stationary at said station such a length of time as would, in your judgment, under all the circumstances proved, be sufficient to enable the plaintiff to leave the car while it was thus standing; and if you find that the train was started by defendant before such reasonable time had elapsed, and that the plaintiff attempted to leave the car while in motion, but while the motion thereof was yet slow, that a person of ordinary caution and prudence would apprehend no danger in stepping therefrom, and that when the plaintiff was in the act of stepping from the steps of the car platform to the station

platform, if you should so find the motion of the train was suddenly increased by the fault or negligence of the employes of said road, and that by reason of such sudden increase of speed the plaintiff was thrown onto the track of the defendant and received the injury complained of, you will find for the plaintiff, unless you further find that he was guilty of want of ordinary care and prudence, which directly contributed to produce the injury." This was a proper instruction, and is applicable to the issues in the case. The complaint alleges the contract to carry Naas in his sick and enfeebled condition, the necessity of assistants, and knowledge of such facts on the part of the defendant; that the plaintiff entered the car as an assistant of Naas; and it fairly appears that the train failed to remain standing a sufficient time for the plaintiff and other assistants to leave the car, and that it moved slowly as plaintiff was leaving the car, so that he could have alighted in safety had it not been for the fact that when he was upon the step, in the act of alighting, there was a sudden. acceleration of speed, caused by the negligence of the employes of defendant operating and running the train, by reason of which plaintiff was thrown violently upon and from the platform and upon the track, and run over, without fault on his part; and this instruction is based upon the same theory, that if the plaintiff rightfully entered upon the car as an assistant of Naas, and the conductor knew it, or had reason to know it, that he should have allowed the train to remain stationary a sufficient length of time for plaintiff to have left the train, and if he failed to do so, and started the train slowly, and continued to run so slowly that a person of ordinary prudence and caution would have apprehended no danger in stepping therefrom, and while the car was thus moving, and the plaintiff was in the act of stepping off onto the platform of the depot, the employes, carelessly and negligently, suddenly accelerated the speed of the car, and by reason of such sudden increase of speed plaintiff was thrown onto the track of the defendant, and received the injury complained of, defendant would be liable, unless the lack of ordinary care or prudence of plaintiff directly contributed to the injury. The fifth instruction states the law properly as to the amount of recovery in the event the jury find for the plaintiff, and is not erroneous.

The next error assigned is the refusal of the court to give. instructions 1, 2, and 8, requested by the defendant. They all proceed upon the theory that if the plaintiff knew the train was in motion, and, to avoid being carried from Mt. Vernon, attempted to leave the train, and such attempt caused or contributed to the injury, he had no right to recover.