do so and was injured, and it was held that she was entitled to recover. "It is true," said the court, "there was no absolute necessity for this act; but she was called upon to decide upon the instant, and under peculiar circumstances, and ought not to be held to the most rigid account for the exercise of the highest degree of caution as against one confessedly wrong.' But the case was made to turn principally upon the fact that she had been advised to the course she pursued by the brakeman, who was held, in what he did, to be acting in the line of his duty; and a number of cases were cited to sustain this position.R

7

Sec. 1178. Same subject.-So in the case of The Pennsylvania Railroad Co. v. Kilgore, the plaintiff, who was sick and feeble, had taken passage with her three children to Greensburg. Upon the arrival of the train at her destination, two of the children alighted from the car, and the plaintiff, with the other child, was preparing to alight, when the train started. She sprang, notwithstanding, upon the platform, but in doing so fell between the cars and the platform, and was seriously injured. It was held that she was entitled to recover, and Woodward, J., in giving the judgment of the court, said: "Whilst there is no doubt about the doctrine of concurrent negligence, which the learned counsel invokes, the circumstances of this case scarcely admit of its application. The company, as public transporters, took the plaintiff and her three children aboard of their cars at Pittsburg under a contract to set them down safely at Greensburg. That it was their duty to stop long enough to let these passengers off at the point of destination is not denied, and that they failed in performing this duty is established by the verdict. It is an established fact that the company did not give her, in the actual circumstances in which she was placed, reasonable time to leave the cars in safety. . . . That it is wrong for a party

6. McIntyre v. The Railroad, 37 N. Y. 287; Foy v. The Railway, 18 Com. B. (N. S.) 225; Siner v. The Railway, L. R. 3 Exch. 150; Mc

Sloop v. The Railroad, 59 Fed. 431; Railroad Co. r. Richerson, 14 Ky. Law Rep. 925.

7. 32 Penn. St. 292,

to attempt to leave cars whilst they are in motion is an abstract truth, that counsel complain of the court for not misapplying here. It is one thing to define a principle of law, and a very different matter to apply it well. The rights and duties of parties grow out of the circumstances in which they are placed. It was as natural for this woman to leave the cars as she did, in her circumstances, as it was rash for Aspell to leap from them in his circumstances. It would be as unreasonable to impute negligence to her as it would have been to have held the company responsible to him.''8

Sec. 1179. Same subject-View that attempt by passenger to alight from train while in motion is not necessarily a negligent act per se.-Although, as we have seen, a number of courts follow the rule that, in the absence of special circumstances excusing such conduct, the passenger will never be justified in attempting to alight from a railway train while it is in motion, the weight of modern authority seems to sustain the view that an attempt by the passenger to alight from a railway train while it is passing a place at which it should stop to enable him to alight, or at which it has failed to stop a reasonable time to permit him to leave it, will not, as a matter of law, be considered a negligent act unless the attending circumstances so clearly show that he acted imprudently or rashly that reasonable minds could fairly arrive at no other conclusion, and that the question whether the act of the passenger in so attempting to alight from the train was negligent, that is, whether he exercised for his safety that degree of care and caution which a person of ordinary prudence would be expected under like circumstances to exereise, must ordinarily be submitted to the jury. While it is true that the attending

8. For a similar case see Loyd v. The Railroad, 53 Mo. 509; and see, also, Ill. Cent. R. v. Able, 59 Ill. 131; Raben v. Railway Co., 74 Iowa, 732; Railway Co. v. Coons, 25 Ky. Law Rep. 509, 76 S. W. Rep. 45.

9. Louisville, etc. R. Co. v. Crunk, 119 Ind. 542, 21 N. E. Rep. 31, 12 Am. St. Rep. 443; Pennsylvania Co. v. Marion, 123 Ind. 415, 23 N. E. Rep. 973, 18 Am. St. Rep. 330, 7 L. R. A. 687; Railroad Co. v. Bean, 9 Ind. App. 240, 36 N. E.

circumstances may so clearly indicate that the passenger, in attempting to alight from a moving railway train, acted imprudently or rashly that the court would be justified in declaring as a matter of law that his conduct was such as to bar

him from the right to a recovery for an injury thereby occasioned, still the inquiry in all such cases is whether the passenger acted as a person of ordinary prudence would have acted if placed in a like situation. And even though no invitation or direction be given the passenger to alight by an agent or servant, or no situation created tending to interfere to some extent with his free agency, circumstances for which the carrier is responsible may exist, inducing the passenger to attempt to alight from the train while it is slowly passing the depot platform, under which it would seem unjust to say that no person of ordinary prudence would have made the attempt, and that in thus attempting to leave the train the passenger was guilty of contributory negligence as a matter of law. Unless, therefore, the conduct of the passenger in attempting to alight from the train whilst in motion was so clearly imprudent or rash that there could be no reasonable difference of opinion in regard to it, the question of his contributory negligence should be determined by the jury upon a consideration of the circumstances attending the act, such as the rate of speed at which the train was running, the circumstances which induced him to alight, his age and vigor, the character of the place where the attempt was made, the facilities which were at hand tending to make the act easy or difficult to accomplish, whether he was incumbered with parcels or was otherwise hampered, whether it was light or dark, and any other circumstances tending to show whether he acted as a person of ordinary prudence and caution would have acted under the circumstances.

Weir,

Md.

62 Atl. Rep. 588, citing Western, etc. R. Co. v. Herold, 74 Md. 510, 22 Atl. Rep. 323, 14 L. R. A. 75.

Where the person is invited or directed to alight, or where the act is done under the apprehension of impending peril, or where the circumstances are peculiarly favorable, as where the car is bare

ly moving, or moving very slowly opposite the depot platform and the person is physically active and his freedom of motion is unimpeded, the question of his negligence in alighting from the train whilst in motion may properly be submitted to the jury. Butler v. The Railroad, 59 Minn. 135, 60 N. W. Rep. 1090.

Sec. 1180. Same subject-How when danger obvious.—But although the passenger, by the refusal of the railway company to stop its train, may be carried beyond his destination unless he alights while the train is in motion, he will not be justified in attempting to alight, notwithstanding an invitation to do so by an employe acting in the line of his duty, if the speed of the train is so great that the danger of alighting is obvious and apparent, or if other circumstances exist making the attempt obviously perilous.10 In such cases, prudence would require him to submit to the wrong, and to seek his redress for it

10. Lindsey v. The Railway, 64 Iowa, 407; Vimont v. The Railway, 71 Iowa, 58; Bardwell v. The Railroad, 63 Miss. 574; South, etc. R. Co. v. Schaufler, 75 Ala, 136; Rothstein v. The Railroad, 171 Penn. St. 620, 33 Atl. Rep. 379; Railroad Co. v. Hughes, 55 Kan. 491, 40 Pac. Rep. 919; Railroad Co. v. Collier, 104 Tenn. 189, 54 S. W. Rep. 980; Simmons v. The Railway, 120 Ga. 225, 47 S. E. Rep. 570; Lindsay v. The Railway, 114 Ga. 896, 41 S. E. Rep. 46; Sanders บ. The Railway, 107 Ga. 132, 32 S. E. Rep. 840; Jones v. The Railway, 103 Ga. 570, 29 S. E. Rep. 927; Railroad Co. v. Dickinson, 89 Ga. 455, 15 S. E. Rep. 534; Railroad Co. v. Souders, 178 Ill. 585, 53 N. E. Rep. 408; Railroad Co. v. Hanberry, 23 Ky. Law Rep. 1867, 66 S. W. Rep. 417; Railroad Co. v. Gregston, 12 Ky. Law Rep. 604; Eaton v. The Railroad, 67 N. H. 442, 40 Atl. Rep. 112; Railroad v. Martelle, 65 Neb. 540, 91 N. W. Rep. 364; La Pointe v. The Railroad, 182 Mass. 227, 65 N. E. Rep. 44; s. c. 179 Mass. 535, 61 N. E. Rep. 142; Agulino v. The Railroad, 21 R. I. 263, 43 Atl. Rep. 63; Railway Co. v. Highnote

Tex.

86 S. W. Rep. 923,
reversing (Tex. Civ. App.) 84 S.
W. Rep. 365; Mercher v. The Rail-
road,
Tex. Civ. App.

85 S. W. Rep. 468; Gulf, etc. R'y
Co. v. Cleveland, 2 Tex. Ct. Rep.
253, (Tex. Civ. App.) 61 S. W.
Rep. 951; High v. The Railroad,
(Tex. Civ. App.), 55 S. W. Rep.
526; Pennsylvania Co. v. Hixon,
10 Ind. App. 520, 38 N. E. Rep.
56; Bosworth v. Walker, 83 Fed.
58, 27 C. C. A. 402; Whitlock v.
Comer, 57 Fed. 565; Peak's Adm'r
v. The Railroad, 23 Ky. Law Rep.
2157, 66 S. W. Rep. 995, Gress v.
The Railway, 109 Mo. App. 716,
84 S. W. Rep. 122; Railroad v.
Trail, (Miss.) 25 So. Rep. 863;
Morrow v. The Railway, 134 N.
Car. 92, 46 S. E. Rep. 12; Dunning
Railroad Co.,
Ind. App.

V.