[Alabama Great Southern R. R. Co. v. Arnold.] Peniston v. R. R. Co., 34 La. Annual 780. 4. What then is a trap or pitfall? Such a situation, conditions, surroundings or obstacle as is more than ordinarily dangerous, or which subjects the party licensed or invited on the premises to unusual or imminent peril. 2 Wood's Railway Law, pp. 1138-1165; 1 Addison on Torts, 6 Ed. 320-321-3; Siner v. Great Western R. R. 3 Exch. 150; Van Schaick v. Hudson River R. R. 43 N. Y. 523; Toomey v. London & C. R. R. 91 Eng. Com. Law Rep. 146; Laflin v. B. & S. W. R. R. Co., 106 N. Y. 136. 5. And if plaintiff seeks to recover upon the last named ground, the complaint must aver it. A. G. S. B. R. Co. v. Arnold, 80 Ala. 604; T. W. & W. R'y Co. v. Foss, 88 Ill. 551. 6. That is not and cannot be a trap or pitfall, which experience has shown to be used in the same manner without accident, or such as are in use for the same purpose by prudent persons in that business.-Siner v. Gt. Western R'y Co. supra; Laflin v. B. A. & W. R. R. Co. supra; McKone v. Mich. Central R. R. 51 Mich. 604. 7. Contributory negligence.-R. R. Co. v. Aspen, 23 Pen. St. 147; Forsyth v. Boston R. R. Co. 103 Mass. 510; Stout v. Sioux City & Pac. R. R. Co., 2 Dillon, R. 297. And knowledge of danger is an element in contributory negligence.-Bunker v. Covington, 69 Ind. 33; Indianapolis v. Cook, 99 Ind. 12,* 13.* 8. Questions of negligence rel non, when facts undisputed, is one of law.-Indianapolis v. Cook, 99 Ind. 10; Montgomery v Wright, 72 Ala. 411; A. G. S. R. R. v. Arnold, 80 Ala. 600. "It is no interference with the province of the jury to give judgment upon the legal effect" of facts or circumstances, the existence or non-existence of which was left for their determination.

JAS. B. HEAD and J. J. ALTMAN, contra, cited R. R. Co. v. Arnold, 80 Ala. 600; R. R. Co. v. McLendon, 63 Ala. 266; R. R. Co. v. Thompson, 77 Ala. 448; 32 Wisconsin 524; 36 Wisconsin 413.

STONE, C. J.-This case was before us at a former term. 80 Ala. 600. The complaint consisted of two counts, one the original, and the other an amendment, adding a second count. The complaint is the same now as on the former appeal. On that appeal we held that the gravamen of each count was the same the failure to have the depot supplied with a light. The first, or original count predicates negligence on the part of the railroad, on the naked averments

[Alabama Great Southern R. R. Co. v. Arnold.]

that Boligee was one of its stations for receiving and discharging passengers, that at that station the railroad had erected a platform and thereon its only ticket office at that place, that plaintiff desiring to take passage on its train, soon to arrive, had entered the office and procured a ticket, that it was night time, very dark, and no light furnished, that the train "was about arriving," and that the "plaintiff attempted to descend the steps of said platform for the purpose of entering the car, and in attempting so to do, fell and thereby received severe personal injuries.'

The count then

avers that "said fall and injuries were caused by the negligence of defendant, or its servants, in failing to provide a light at said station, whereby plaintiff would have been able to see his way, and avoid said fall and injuries."

The amendment, or second count, differs from the first, only in the following additional averments, giving a more minute description of the place where the injury was suffered: "That said office had in front of, and attached to it, fronting its entrance, a platform about three and one-half feet wide, which was accessible by steps about three and a half feet in width, reaching from the ground to the top of the platform in front of the door of said ticket office, over which steps and platform passengers were required to pass in entering the ticket office. The surface of said platform was elevated about four, or four and a half feet above the ground; and plaintiff avers that the construction of said steps and platform as above described, rendered the same unsafe and dangerous, and liable to cause personal injuries to persons passing over the same." The count then described the injury as it was described in the first count, and complains of the absence of a light, as the negligence which caused the injury. Speaking of these counts, we, on the former appeal, said: "The injury and the negligence complained of as the cause, are the same as set forth in both counts; and while it is averred that the construction of the steps and platform rendered them unsafe and dangerous, this does not constitute the negligence, alleged to be the cause of the injury; but, as we interpret the count, the allegations are intended to show a greater and more imperative duty to provide a light, from the failure to do which it is distinctly and expressly averred, in the new count, the injuries resulted. Under neither count is the plaintiff entitled to recover for any negligence, other than the failure to provide a light."

When this case was returned to the circuit court, the de

[Alabama Great Southern R. R. Co. v. Arnoid.] fendant demurred to the counts of the complaint collectively, and assigned as cause of demurrer, that "there was at the time mentioned in said complaint no statute of force in the State of Alabama which required of, or imposed upon said defendant the duty to furnish good and safe platform and lights, or either of such platform or lights at Boligee station, nor was there any duty at the common law to furnish said platform or lights. There was, when the injury is alleged to have occurred-February 11, 1885-no statute relating to the subject in Alabama. Our first statute on that subject was approved February 28, 1887; Sess. Acts, 74. Was there a common law duty resting on defendant at that time?

In M. & E. Railway Co. v. Thompson, 77 Ala. 448, we said it was "the duty" of railroads "to provide safe waiting rooms, and to keep the depot and platform well lighted in the night time. The injury we were considering in that case occurred at the Union Depot in this city, Montgomery, the common passenger depot of five railroads, with trains arriving and departing at different times; and the plaintiff in that suit had just alighted from the train on which he arrived. In support of our views we referred to the following authorities, which bear on the question of lighting the depot and its platform. Thompson on Negligence, vol. 1, p. 315, has this language: "It is the duty of the railway company to have its station houses open and lighted, and its servants present, for the convenience of those who may wish to leave its trains, or to depart by the same." In support of this doctrine the author refers to Patten v. C. & N. W. Railway Co., 32 Wis. 524. In that case the injury suffered was at a country depot, and the plaintiff, an elderly lady and unattended, was discharged from the train at 9:45 at night. The trial judge submitted it to the jury to determine whether the railroad was guilty of negligence in not having its depot lighted, or a person there to give information. The Supreme Court held there was no error in this. It will be observed that in the Wisconsin case, there was at the depot neither a light, nor a person to give information.

The case of Knight v. P. S. & P. R. R. Co., 56 Me. 234, also referred to by Thompson, arose as follows: Plaintiff was travelling under a ticket, which secured her passage over two connecting railroads, and a connecting steamboat line. From the terminus of the railroad, where plaintiff had to leave the cars, to the steamboat, was a "considerable dis

[Alabama Great Southern R. R. Co. v. Arnold.]

tance," which she had to walk. It was across a wharf, the property of defendant, provided and used for the purpose. Plaintiff, it being at night and dark, stepped into a hole in the planking, and was injured. The court said: "The wharf should be lighted. The servants of the defendant corporation should be in readiness to point out the way. The wharf should be safe."

Another case referred to in M. & E. Railway Co. v. Thompson, is Stewart v. I. & G. N. R. R. Co., 2 Amer. & Eng. R. R. Cases, 497; s. c., 53 Tex. 289. The gravamen of the petition [plaintiff's complaint] was, the negligent failure of the railroad company to provide "proper lights and accommodations for passengers at its depot." Held, that, on general demurrer, the petition was sufficient. See, also, Peniston v. C. St. L. & N. O. R. R. Co., 34 La. An. 777; Reynolds v. Tex. Pacific Railway Co., 37 La. An. 694. The other cases cited do not refer to the question of lights.

The case of People v. N. Y., Lake Erie & W. R. R. Co., 104 N. Y. 58, is relied on as showing there is no commonlaw duty resting on the railroad, in the matter we have in hand. That was an application for the extraordinary writ of mandamus, to compel the railroad company to erect larger and more comfortable depot accommodations at Hamburg, one of its stopping places. The relief was denied, the court holding that there was neither statutory nor commonlaw obligations resting on railroads to erect depot buildings. So, in this case, if the defendant railroad company had neglected or refused to erect any depot building, any waiting room, or any platform at Boligee, we are not prepared to say there was any law under which it could have been compelled to do so.

The defendant did not

The foregoing is not this case. neglect or refuse to erect a ticket-office, used as a waiting room, with platform in front, and steps leading to it. All these were erected, and persons wishing to be carried on the railroad, or having other business with it, had a standing invitation to enter the office, and transact business thereat. Those desiring tickets, must obtain them there and not elsewhere. And this invited right of entry, can not, at least without special warning, be restricted to the simple privilege of entering and remaining long enough to procure a ticket. It would include the right authorized custom, of using the office as a waiting room, if none other was provided. Hence,

[Alabama Great Southern R. R. Co. v. Arnold.]

although there may have been no law requiring the railroad to erect an office and platform at Boligee, yet, having done so, and having thereby invited persons having business with it to enter for its transaction, the law required that they should be adapted to the purpose, and not dangerous, hazardous, or unsafe. This, under the enduring principles of the common law, which govern new exigencies that have arisen or may arise, equally with conditions that gave them form and expression centuries ago.- In re Railway Co. v. Railway Co., 87 Eng. Com. Law, 410.

The expression in Thompson's case, supra, was used in reference to the case we were then considering. Thompson had just arrived and left the train at a common depot of five railroads, and in a city. The train having just arrived, and passengers in the act of leaving it, and this in the night time, it is manifest that a light should have been furnished. And if the place was not otherwise sufficiently lighted, a light should have been provided at the place of debarkation. But this duty would have a limit. It would be incumbent only at the departure and arrival of trains, and for a sufficient time before departure, to enable persons desiring to take passage to be in readiness and enter the cars, without undue haste; and after the arrival, to enable those leaving the train to do so in safety. Beyond this, the duty of the railroad to maintain a light at its depot would in no case extend.1 Thomp. Neg., 314; Batton v. S. & N. R. R. Co., 77 Ala. 591.

In the case we have in hand, the complaint does not disclose the size of the place, Boligee, nor does it show for how many railroads it is a depot. It informs us of but the one. It is a rule of law, as it is a lesson of common experience, that precautionary requirements increase in the ratio that danger becomes more threatening. It is certainly true that less vigilance is demanded at a small country depot of a single road, visited but few times in the twenty-four hours, than is required in cities where many trains arrive and depart during each day and night.

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In each of the counts of the complaint it is averred that "the plaintiff attempted to descend the steps, when the train was about arriving. About, in the connection here used, means nearly—not far from. That is, near-not far from, the arrival of the train. Now, as these words are indefinite, and do not imply that the time had come when it was reasonably, or apparently necessary that plaintiff should descend from the platform to place himself in readiness to enter the

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