at the station and while taking the course and following the path usually taken by the passengers and employés of the company in boarding its trains.312 § 2988. Further of this Right to Assume, etc.-Wherever a railroad company is in the habit of receiving passengers, whether at a station or some point outside, or if, by the regular operation of trains, it is necessary to traverse portions of the premises outside of the station house, passengers have a right to assume that such parts of the premises are in a safe condition for such purpose, even on a dark night.313 Injuries frequently happen to passengers by being run over by other trains passing through stations, while taking or leaving their own trains. In cases of this kind, it would seem that if the running arrangements of the road are such that it is necessary to pass over a railroad track in order to take or leave a train, the passenger may rightfully expect protection against the running of trains at such a time, and may therefore properly relax that vigilance for his safety which is ordinarily demanded of one coming upon a railroad track. But if the presence of the passenger on the track is not essential to his getting on and off the train, and if he has neglected safe and convenient means provided by the company for this purpose, he is there at his peril.315 A person attempting to board a train as a bona fide passenger, at a place other than a regular station, where the carrier is in the habit of receiving and discharging passengers, has a right to presume that it is safe to board the train at such place, unless the risk is so obvious that a man of ordinary care and prudence would not make the attempt.31 314 § 2989. Care Required in Crossing Intervening Tracks to Board the Train. Where a railway carrier draws up a train on a track a short 312 Baltimore &c. R. Co. v. State, 81 Md. 371; s. c. 32 Atl. Rep. 201. 313 Hulbert v. New York &c. R. Co., 40 N. Y. 145; McDonald v. Chicago &c. R. Co., 26 Iowa 124; s. c. 29 Iowa 170; Thomp. Carr. Pass. 93; Knight v. Portland &c. R. Co., 56 Me. 234; Martin v. Great Northern R. Co., 16 C. B. 179; Nicholson v. Lancashire &c. R. Co., 3 Hurl. & Colt. 534; s. c. Thomp. Carr. Pass. 85; Alabama &c. R. Co. v. Coggins, 88 Fed. Rep. 455; s. c. 60 U. S. App. 140. 314 Klein v. Jewett, 26 N. J. Eq. 474; Chicago &c. R. Co. v. Wilson, 63 Ill. 167; Armstrong v. New York &c. R. Co., 66 Barb. (N. Y.) 437; s. c. aff'd 64 N. Y. 635; Pennsylvania Co. v. Keane, 41 Ill. App. 317. 315 Pennsylvania R. Co. v. Zebe, 33 Pa. St. 318; s. c. 37 Pa. St. 420; Bancroft v. Boston &c. R. Co., 97 Mass. 275; Gonzales v. New York &c. R. Co., 50 How. Pr. (N. Y.) 126. 316 North Birmingham Street R. Co. v. Liddicoat, 99 Ala. 545; s. c. 13 South. Rep. 18. Hence, the question whether a passenger upon a railway train is guilty of negligence in using a way out of the car apparently safe and in general use by the other passengers, but in fact unsafe, when a safe exit has been provided, is a question for the jury: Missouri &c. R. Co. v. Long, 81 Tex. 253; s. c. 16 S. W. Rep. 1016. distance from the station platform, so that, in order to reach the train, intending passengers are obliged to cross the intervening tracks, they are justified in assuming that the carrier has so arranged its business and the movements of its other trains, as not to expose them to the hazard of danger to life and limb, in making such passage over the intervening tracks, unless they exercise the very highest degree of care and caution. The exercise of such a degree of care and caution is not demanded of the passenger in such a situation; but if the passenger is injured by being run upon by intervening locomotives or trains, he may recover damages, unless, in view of the circumstances, and in view of his right to assume due care on the part of the carrier, he fails to exercise ordinary care for his own safety.317 The care required of a passenger crossing a track from a station platform to reach his train is not to be determined by the rules of law as to travellers upon a highway at a railroad crossing, for the reason that the railroad company owes the passenger a higher degree of care than it owes the traveller who is a stranger to it.3: The care to be exercised by the passenger in such a situation is, as in other cases,319 a care proportionate to the risks to be apprehended. The vigilance which the law demands of the passenger where he is proceeding by the way provided by the carrier across a railway track of the carrier to reach his train, is undoubtedly modified to some extent by the consideration that he has a right to rely upon the fact that his carrier will not run engines or cars along intervening tracks without exercising that high degree of care to promote the safety of the passenger which the law puts upon him in other situations. He may, to some extent, rely upon the carrier doing its duty by giving proper signals of danger; and his failure, in consequence of relying upon this performance of duty by the carrier, to look for an approaching train on the intervening track, is not conclusive of negligence on 317 Warner v. Baltimore &c. R. Co., 168 U. S. 339; s. c. 42 L. ed. 491; 18 Sup. Ct. Rep. 68. A recovery for injuries to one struck by a train upon a track which he was obliged to cross to reach the train which he desired to take, is barred, under Ga. Code, § 3830, providing that if the plaintiff, by ordinary care, could have avoided the consequence to himself caused by defendant's negligence, he is not entitled to recover, if such person failed to use his senses to ascertain the approach of the train, and could have avoided the consequence of the company's negligence by the exercise of ordinary care: Southern R. Co. v. VOL. 3 THOMP. NEG.-29 318 Smith, 52 U. S. App. 708; s. c. 30 318 Warner v. Baltimore &c. R. Co., 168 U. S. 339; s. c. 42 L. ed. 491; 18 Sup. Ct. Rep. 68. Contrary to the foregoing, and also to the law, is a decision of a subordinate court to the effect that one who alights from a train before it stops, and attempts to cross a track between the train and the station, is bound to use the same degree of care as though crossing a track on a highway: Parsons v. New York &c. R. Co., 37 Hun (N. Y.) 128. 319 Vol. I, § 25. 449 his part, but presents a question for the jury.320 Upon this question that court has said: "No one can be said to be in the exercise of due care who places himself upon a railroad track without the assurance, from actual observation, that there is no approaching train. But the degree of caution which he must exercise in crossing will le affected always by the circumstances of the time and place. He has a right to rely to some extent upon proper precautions and the usual signals of warning, to be given by an engine or train passing a station where passengers are leaving another train upon its fresh arrival."321 The same court has held that information given by a baggage master to a person waiting for a train, that it would be along in six minutes, and must be taken from the other side of the track, did not amount to an assurance that there would be no danger in crossing, or relieve such person from the responsibility of exercising due care. 322 $2990. Attempting to Reach Train by a Dangerous Way where a Safe Way has been Provided.-Passengers will not be justified in taking a course of their own across the company's premises for the purpose of reaching the train sooner than by the customary way; and 320 It was so held in a case where the plaintiff bought a ticket at a station, and the station agent said to him, "The train is coming,—we will cross over," and he attempted to follow him, for the purpose of taking his seat in the train (which meanwhile had arrived), and, in crossing a track for that purpose, was struck by another train, coming from the other direction and partially behind him, which he did not look for or see until too late to save himself: Warren v. Fitchburg &c. R. Co., 8 Allen (Mass.) 227. See also, Mayo v. Boston &c. R. Co., 104 Mass. 137. 321 Gaynor v. Old Colony &c. R. Co., 100 Mass. 208, 213. To the same effect, see Chaffee v. Boston &c. R. Co., 104 Mass. 108; Wheelock v. Boston &c. R. Co., 105 Mass. 203. This seems to be well illustrated by a case where the defendant railroad company had for many years run a certain train on the southerly of two tracks, and passengers, in taking said train, had been accustomed to pass over the northerly track, lying between it and the station, to reach such train. Plaintiff's intestate, with others, on such train being announced, left the station to board the train. Though it was dark, deceased could have seen, had he looked, that the train was coming on the north track, but was killed by the train while passing over the north track to take the train, as he thought, on the south track, as usual. It was held that deceased could not be said, as a matter of law. to have been guilty of contributory negligence in not looking to see which track the train was on: Beecher v. Long Island R. Co., 161 N. Y. 222; s. c. 55 N. E. Rep. 899: aff'g s. c. 55 N. Y. Supp. 23: 35 App. Div. (N. Y.) 292. Proof that a woman crossing the south track at a station to get aboard a passenger train that had slowed up, going west on the north track, was struck and killed by a freight train going east at the rate of nearly ten miles an hour,-held to establish negligence on the part of the railroad company: Terry v. Jewett, 17 Hun (N. Y.) 395; s. c. aff'd 78 N. Y. 338. if they are injured in consequence of taking this course of action, they can not recover damages.3 323 $2991. Crawling under One Train to Reach Another.-Although it is the duty of the railroad company to have its trains safely and conveniently accessible to persons intending to take them, yet this will not justify a passenger who finds a freight train, with steam up, and blocking the way, in crawling through or under it without permission of or notice to any one in charge of such train.324 But where a person about to take passage on a train, having first looked up and down the track and seen no car in motion, but a locomotive standing far away, crawled between two freight cars which belonged to a train. with no locomotive attached, and while in such position was injured by cars being propelled against the end of the train, in the process of making it up,-it was held that the conduct of the injured person could not be said to be negligence in law, but that under all the circumstances her negligence was a question for the jury.325 $2992. Boarding Train before it is Ready.-It is obvious that if a passenger chooses to board the train before it is drawn up at the proper place for the reception of passengers, or before it is otherwise ready to receive them, without the knowledge of the servants of the carrier, he takes upon him any risks which may result from such an act, growing out of the dangers incident to shunting and coupling in the making up of the train. If, on the other hand, he takes such a position by the invitation of the servants of the carrier, and is hurt while in the car, it will be no defense to an action for damages that the train was not ready to receive passengers. 326 § 2993. Boarding Train at Improper Place.-As a general rule, if a passenger undertakes to board a railway train in the train yard. or before it has been pulled up opposite the station in readiness to receive passengers, and a passenger is injured in consequence of taking this course, he will be precluded from recovering damages by reason of his own negligence. It was so held where a person went, in the nighttime, in the midst of a train yard and at a place where the railroad company was not accustomed to receive passengers, and, without the knowledge of those in charge of a freight train. 323 Burgess v. Great Western R. Co., 6 C. B. (N. S.) 923. See also Foreman v. Pennsylvania R. Co., 1 Pa. Dist. Rep. 233; s. c. 11 Pa. Co. Ct. 475. 224 Chicago &c. R. Co. v. Coss, 73 III. 394; Chicago &c. R. Co. V. 825 Allender v. Chicago &c. R. Co., 37 Iowa 264. 320 Hannibal &c. R. Co. v. Martin, 11 Ill. App. 386. 330 which was standing there, attempted to enter the caboose attached to it, and in so doing was injured;327 where an intending passenger went upon the track toward a train which had run past the station at which it was signaled to stop, and his situation was not known to any of the trainmen, and the train backed upon him ;328 where an intending passenger attempted to enter a passenger car on a mixed train, while the train was being made up, at a distance from the station, without the knowledge of any person in control of the train, although with the knowledge of the station baggage master, and without any invitation on the part of any servant of the carrier authorized to give an invitation to get on the car at that place, and was shaken off the car by a sudden jolt incident to the making up of the train;$29 and where a passenger, unnecessarily and without invitation, went upon a railroad track to take a train, and was injured by being struck by a train, although a few days previously, at the request of a conductor. he took a train by going upon the track in the same manner." These and other like cases have been decided upon the view that the concrete facts exhibited manifest negligence and recklessness in exposing one's self to danger. It is not to be inferred from them that there is any rule of law which makes it negligence per se to board a passenger or other train at a place other than the station platform. Such is not the case.331 For example, it is not contributory negligence, as matter of law, for a passenger to go outside of the station yard in order to enter the coach in which he desires to ride, which is left standing outside of the yard, where a sidewalk which has been erected by the company, and which is under its control, leads directly to the coach.332 Neither is it contributory negligence, as matter of law, for a passenger to enter the caboose of a freight train used as a passenger car, at a distance from the station platform, and without notifying the conductor, when the rules of the company require passengers to get on wherever it is convenient to persons in charge of the train for them to do so, and such is the regular custom,-the passenger being injured in consequence of a collision between such car and a freight train, brought about by the 327 Haase v. Oregon R. &c. Co., 19 Or. 354; s. c. 24 Pac. Rep. 238. 32 St. Louis &c. R. Co. v. Whittle, 74 Fed. Rep. 296; s. c. 40 U. S. App. 23; 20 C. C. A. 196. 329 Jones v. New York &c. R. Co., 156 N. Y. 187; s. c. 41 L. R. A. 490; 50 N. E. Rep. 856; rev'g s. c. 90 Hun (N. Y.) 605. 330 Foreman v. Pennsylvania R Co., 159 Pa. St. 541; s. c. 28 Atl. Rep. 358. 331 Stoner v. Pennsylvania Co., 98 Ind. 384; s. c. 49 Am. Rep. 764. 332 Moses v. Louisville &c. R. Co.. 39 La. An. 649; s. c. 2 South. Rep. 567. |