and discernment it appeared to be such a way, and by the company it was allowed to remain and be in use by passengers going to or from trains, any one going to and from a train as a passenger was authorized to make use of it. If the company permitted it to be done openly, so that persons of reasonable judgment and discernment would conclude it to be a means of entrance and exit, then any passenger was authorized to take it and use it. It is submitted to you as a question of fact whether, to an ordinary observer, this was held out as one of the passage-ways from the depot to the public street. If so, any passenger, unwarned, might use it as such. If you should so find, it is entirely immaterial who built the stairway or who kept it in repair.'

Duty of carrier to pro

vide means of access to sta

tion.

The duty of a railroad company, as a carrier of passengers, does not end when the passenger is safely carried to the place of his destination. The company must also provide safe means for access to and from its station for the use of passengers, and passengers have a right to assume that the means of access provided are reasonably safe. If there be two ways, one of which is faulty in construction or repair, a passenger using it, and injured by its faulty condition, will not be debarred of his action, although the other, which he might have used, was safer. Longmore v. Great Western R. Co., 19 C. B. (N. S.) 183. A company having provided one safe and convenient way of ingress and egress to and from its station, may, as contended for by the company's counsel, suffer private persons, for their own convenience, to have and use another way of access across its depot grounds, and it may be that those who use such a way will do so at their peril, if they have notice of the private character of the way. But that is not this case. The passage-way taken by the plaintiff led to the public street, and had every indication of having been provided for use by the public, as a way to and from the station. Under the charge of the court and the finding of jury it must be taken to be the fact that this way of passage was there by recognition, procurement or consent of the company, and that by sufferance and use it had obtained such an appearance of a passage-way passengers were invited to use, as that persons of reasonable judgment and discern- . ment would conclude it to be a means of entrance and egress. It was of a passage-way having these characteristics that the judge said that it was immaterial who built the stairway, or who kept it in repair.

In Beard v. Connecticut & P. Riv. R. Co., 48 Vt. 101, there was a stairway for passengers through the company's depot building, and also a stairway at each end of the passenger

platform. The stairway at the north end was open at the top, and there was nothing to indicate that it was not for the use of passengers. In fact, that stairway was built by an express company, and was used exclusively by the express company for removing express freight, and opened into the street, over a platform for loading and unloading express wagons. The plaintiff, a passenger, in attempting to pass down the stairway in the dark, fell and was injured. For this injury she sued the railroad company. The defendant's Counsel requested the trial judge to charge the jury that the plaintiff could not recover unless she showed that the lower platform, in stepping from which she was injured, was on the defendant's premises. The court declined to so instruct the jury, but told the jury that the plaintiff, to recover, must establish that the company was guilty of negligence in leaving the stairway where it left the upper platform open, and without any guard or notice to warn passengers that the stairway was not to be used as a way of passage to the street below, and that she was injured by such negligence or want of care on the part of the defendant without any neglect or want of care on her part contributing to the injury. This instruction was held to be correct. The court, in sustaining the instructions of the trial judge, speaking of the likelihood of a stranger to regard that stairway as designed to furnish a safe way of getting to the street, said: "If not so designed, and it was unsafe to a stranger for such a purpose in the darkness, it was the duty of the defendant to forefend against injury by closing up the head of the stairs, or by notifying in some effectual way against using those stairs for getting to the street. In view of the unquestionable law, the request to which the exception was taken seems frivolous. The open stairs on the margin of the platform led the plaintiff, without fault on her part, to the point of harm. The fact that the bottom of the pitfall on which the plaintiff landed, and thereby received hurt, was beyond the line of ownership of the defendant, neither relieves the duty, nor mitigates the fault, of the defendant."

*

* * *

In the case in hand, contributory negligence by the plaintiff was negatived by the jury. The case is here solely on the use of the passage-way by the plaintiff, and the duty of the company with regard to its condition and safety. We think the instruction of the trial judge on that subject was correct. A passage-way having the characteristics men- Invitation to tioned by the judge became by the company's act use passage a passageway which passengers were invited to way. use, with respect to which the company was under a duty

41 A. & E. R. Cas.-13

to have it kept reasonably safe for use. A passenger using the way under such an invitation was not bound to inquire by whose contributions the stairway was erected or maintained. Nor was the company absolved from its duty in the premises by the fact that it erected and maintained at its own expense another way of exit. The other exceptions on the record have been examined. We find no error in the conduct of the trial, and the judgment should be affirmed. Affirmed unanimously.

Approach to Station-Duty of Company to Light-Degree of Care.-Railroad companies are bound to provide safe and convenient means of approach to their stations for all who take their trains as passengers, and of departure for those leaving them; and, as a part of this obligation, the stations must be sufficiently lighted, and kept lighted until all passengers have had a reasonable time afforded them to reach a safe public thoroughfare by the aid of such lighting if needed, or unless a guide be furnished for the purpose by the company. A great many trains passing a particular station every day make the approach to and departure from that station very dangerous, and the diligence and care of the railroad company in protecting its passengers in coming and going must be proportionate to the risk incurred by them, and such danger also requires of the passenger cautious circumspection, proportioned to such risk. Per COMEGYS, C. J., charging the jury, in Wallace v. Wilmington & N. R. Co., Del. Super. Ct., Dec. 13, 1889.

Station-Strangers-Extinguishment of Light-Trespasser. If a passenger, being a stranger to the station and surroundings, and finding himself, almost immediately after alighting from a train, left in utter darkness by the extinguishment of the station light by the agent of the railroad, the railroad cannot claim that the passenger is a wrong-doer if he, in his effort to get to a place of safety or for information, cross other ground of the defendant than that upon which the station is actually erected. Per COMEGYS, C. J., charging the jury, in Wallace v. Wilmington & N. R. Co., Del. Super. Ct., Dec. 13, 1889.

Same Submission to Guidance of Third Person.—If the plaintiff committed herself to the guidance of a third person, and trusted to his knowledge and skill, she would be held to have waived the duty of the railroad to furnish her with safe means of departure. But if this third person, being a member of the party, be equally ignorant of the proper way to depart, she could hardly be charged with having put herself under such guidance. Per COMEGYS, C. J., charging the jury, in Wallace v. Wilmington & N. R. Co., Del. Super. Ct., Dec. 13, 1889.

SULLIVAN

V.

MAINE CENTRAL R. Co.

(Maine Supreme Judicial Court, December 28, 1889.)

Injuries to Passengers Travelling on Sunday.-Riding upon Sunday for exercise, and for no other purpose, is not a violation of the statute in relation to the observation of the Lord's day. The statute was not intended as an arbitrary interference with the comfort and conduct of individuals, when necessary to the promotion of health in walking or riding in the open air for exercise.

ON exceptions from Supreme Judicial Court, Kennebec County.

Action for damages. There was a verdict for plaintiff, and defendant excepted.

H. M. Heath and O. A. Tuell for plaintiff.

F. A. Wilson and C. F. Woodard for defendant.

Riding on

Sunday for exercise not illegal.

FOSTER, J.-The defendant's contention in support of the single question raised by the exceptions is founded upon the erroneous assumption that riding upon Sunday for exercise, and for no other purpose, is a violation of the statute in relation to the observance of the 'Lord's day. The statute is not to be so construed. Such an interpretation would be contrary to the spirit as well as the letter of a statute which expressly excepts from its prohibition works of necessity or charity. Rev. St. chap. 124, § 20.

And this exception may properly be said to cover everything which is morally fit and proper, under the particular circumstances of the case, to be done upon the Sabbath.

Tested by this rule, our own court, in O'Connell v. Lewiston, 65 Me. 34, and Davidson v. Portland, 69 Me. 116, has held that walking out in the open air upon the Sabbath for exercise is not a violation of the statute.

In other jurisdictions, also, it has been held not to be unlaw ful to ride to a funeral, (Horne v. Meakin, 115 Mass. 326;) walking to prepare medicine for a sick child, (Gorman v. Lowell, 117 Mass. 65 ;) riding to visit a sick sister, (Cronan v. Boston, 136 Mass. 384;) travelling to visit a sick friend, (Doyle v. Railroad Co., 118 Mass. 195;) a servant riding to prepare needful food for her employer, (King v. Savage, 121 Mass. 303;) a father riding to visit his two boys, (McClary v. Lowell,

44 Vt. 116;) walking for exercise, (Hamilton v. Bosto, 14 Allen (Mass.), 475;) and walking partly for exercise and partly to make social call, (Barker v. Worcester, 139 Mass. 74.)

The statute was never intended as an arbitrary interference with the comfort and conduct of individuals, when necessary to the promotion of health, in walking or riding in the open air for exercise. The prohibition is against unnecessary walking or riding. As a general rule, the jury, under proper instructions from the court, must determine this question from the circumstances presented to them.

In this case we can perceive no error in the instructions, and the exceptions must be overruled.

Nor do we think the verdict should be disturbed under the motion for a new trial. A very careful examination of the evidence satisfies us that upon the questions of fact submitted to the jury no interference by this court is necessary. The plaintiff was clearly entitled to some damages. The amount awarded does not appear to be excessive.

Motions and exceptions overruled.

PETERS, C. J., and WALTON, VIRGIN, EMERY, and HASKELL, JJ., concurred.

Injuries to Passengers while Travelling on Sunday-Right to Recover.See Delaware L. & W. R. Co. v. Trautwein (N. J.), ante, p. ; Bucher v. Cheshire R. Co. (U. S.), 34 Am. & Eng. R. Cas. 389; McDonough v. Metropolitan R. Co. (Mass.), 21 Id, 354; Smith v. New York, S. & W. R. Co. (N. J.), 18 Id. 399, note 403, 481; Knowlton v. Milwaukee City R. Co. (Wis.), 16 Id. 330; Bucher v. Fitchburg R. Co. (Mass.), 6 Id. 212, note 220; note 23 Id. 434.

SAVANNAH, FLORIDA & WESTERN R. Co.

ข.

HOLLAND.

(Georgia Supreme Court, March 1, 1889.)

Passenger Personal Injuries-Evidence-Res Gesta. The plaintiff, a passenger upon a railway, who left the train late at night, and in so doing (as he alleges) was injured by a fall which broke his leg, having pulled off his coat, detached his suspenders, bound up his broken limb, crawled through a culvert from one side of the railway to the other, seated himself on the cross-ties, and cried for help, his account of the manner of his leaving the train and receiving the injury, given to a person who reached him about half an hour after first hearing his cries, was no part of the res gesta, and, being a mere narrative of a past event, was not admissible evidence in his own behalf.