mine what words by a conductor amount to an advice
or command to leave a moving train. The words
"Jump quick, if you are going to," addressed by a con-
ductor to a passenger as the train is leaving the station
of his destination, are merely words of advice, and do
not amount to a positive direction to get off." "Jump
with the train," or "Don't jump sideways," is not an
advice or direction to leave the train, but merely a
suggestion of the safest method of doing so if the pas-
senger is resolved on making the attempt. A state-
ment by a conductor to a passenger, anxious to get off
as soon as possible, that passengers sometimes get off
at a point 50 or 60 feet from the station, while the
train is in motion, is not equivalent to a direction or
order by the conductor to get off at that place." So the
silence of the conductor, on hearing another passenger
tell plaintiff that the car is not going to stop, and that
he had better get off, will not justify him in jumping
from the car.1 10
But the words, "You get off," address-

Vimont v. Railway Co., 71 Iowa, 58, 32 N. W. 100.

8 McDonald v. Railroad, 87 Me. 466, 32 Atl. 1010.

9 Chicago, B. & Q. R. Co. v. Hazzard, 26 Ill. 373. A statement by a conductor to a passenger, who demurs to jumping from the train as it is passing the station platform, that he could take the risk if he would, does not amount to an order or direction to jump from the train. Jeffersonville R. Co. v. Swift, 26 Ind. 459.

10 Masterson v. Railway Co., 88 Ga. 436, 14 S. E. 591. An announcement of the name of a station, and a statement "All out for" such station, made by the conductor, does not justify a passenger in getting off the train, in the dark, several hundred yards from the station, and while it is running 18 or 20 miles an hour. Louisville & N. R. Co. v. Depp (Ky.) 33 S. W. 417. An expression of opinion by a conductor that a passenger can leap from a train in safety at a station at which it does not stop does not relieve the passenger of

ed by a brakeman to the escort of a female passenger after the car is in motion, and while the parties are on the car platform, accompanied by the brakeman's act in shutting the vestibule door of the car after the escort is on the car steps, are a positive order, and not mere information, advice, or opinion; and the passenger is not, as matter of law, guilty of contributory negligence in obeying it.1 And where the conductor pulls the bell rope as a signal for the engineer to stop as the train is leaving the station, and opens the door of a vestibule car, and informs a passenger, "You can get off now," the question whether the passenger is guilty of contributory negligence in stepping from the train in the dark, under the belief that it had stopped, is for the jury, though it was still in motion.1

11

12

1

§ 155. SAME-STATUTORY PROVISIONS. Statutory prohibitions, more or less sweeping, against getting on or off moving trains, exist in many of the states. In New Jersey it is provided that one injured by jumping on or off a car while in motion shall be deemed to have contributed to the injury sustained, and shall not recover any damages therefor.' In Iowa it is made a misdemeanor for any person to the duty to exercise his judgment whether or not such a leap is safe; and if the conductor only gives it as matter of opinion, still, if the danger is so apparent that a prudent man, similarly situated, would not have attempted to leap from the train, then the passenger was guilty of negligence, and should not be permitted to recover. Chicago & A. R. Co. v. Randolph, 53 Ill. 510.

11 Galloway v. Railway Co., 87 Iowa, 458, 54 N. W. 447.

12 Evansville & T. H. R. Co. v. Athon, 6 Ind. App. 295, 33 N. E. 469. $155. 1 Revision N. J. p. 920, § 67.

get on or off a moving train, without the consent of the person having the same in charge." Under this statute, it is contributory negligence, as matter of law, in all cases for a passenger to get off a moving train without the conductor's consent. The law will not afford a party a remedy for an injury sustained by him as the consequence of his own act, when it has forbidden him in advance to do that act.3 The conductor's consent, however, need not be express, but it may be inferred from his conduct. This inference is for the jury as one of fact, and it is error for the court to determine it as one of law.* But, though plaintiff testifies that some one told him to jump off, yet where he is an experienced railroad man, and is unable to state whether it was the conductor who addressed him, and the conductor and brakeman each testify that neither of them told plaintiff any such thing, a verdict in plaintiff's favor cannot be sustained."

2 Acts 16th Gen. Assem. c. 148 (McClain's Ann. St. 1884, p. 985). Laws N. Y. 1878, c. 261, makes it a misdemeanor for any person not a railroad employé to get on or off a freight car or engine in motion. In other states it is declared unlawful for any one, not a passenger or an employé, to get on or off moving trains. Rev. St. Ind. 1894, § 2290; Gen. St. Ky. 1894, § 805; 2 How. Ann. St. Mich. § 9122; Ann. Code Miss. § 1272.

3 Raben v. Railway Co., 74 Iowa, 732, 34 N. W. 621. It makes no difference that a female passenger, whose children were already on the station platform when the train started, was impelled to get off by the fear of being carried away from her children, or that she had reason to believe that she could do so in safety. Id. One who is injured while boarding a moving train, in violation of statute, cannot Young v. Railway Co. (Iowa) 69 N. W. 682.

recover.

Raben v. Railway Co., 74 Iowa, 732, 34 N. W. 621.
Herman v. Railway Co., 79 Iowa, 161, 44 N. W. 298.

§ 156. BOARDING MOVING STREET CAR. The strict rules laid down in the preceding sections, as to attempts to board or alight from moving trains propelled by steam, are not applicable to attempts to board or alight from moving street cars. "Ordinarily, it is perfectly safe to get upon a street car moving slowly, and thousands of people do it every day with perfect safety. But there may be exceptional cases, where the car is moving rapidly, or where the person is infirm or clumsy, or is incumbered with children, packages, or other hindrances, or where there are other unfavorable conditions, where it would be reckless to do so; and a court might, upon undisputed evidence, hold as matter of law that there was negligence in doing so. But in most cases it must be a question for the jury.” 1 Numerous cases support the proposition that it is not, as matter of law, contributory negligence for a person to board a slowly moving street car which has been signaled to stop.2

$156. 1 Eppendorf v. Railroad Co., 69 N. Y. 195.

2 Id.; Conner v. Railway Co., 105 Ind. 62, 4 N. E. 441; Sahlgaard V. Railway Co., 48 Minn. 232, 51 N. W. 111; Valentine v. Railroad Co. (Com. Pl.) 4 N. Y. Supp. 481; McSwyny v. Railroad Co., 54 Hun, 637, 7 N. Y. Supp. 456; Seitz v. Railroad Co. (Com. Pl.) 10 N. Y. Supp. 1; Morrison v. Railroad Co., 130 N. Y. 166, 29 N. E. 105, affirming 55 Hun, 608, 8 N. Y. Supp. 436; Thompson v. Macklem, 2 U. C. Q. B. 300; West Chicago St. R. Co. v. Dudzik, 67 Ill. App. 681. It is not negligence per se for a person to get on or off a street car drawn by horses while it is in motion. It depends upon the circumstances surrounding each case, and the question is ordinarily one of fact, to be submitted to the jury. Schacherl v. Railway Co., 42 Minn. 42. 43 N. W. 837. Whether it is negligence or not for a person to at

But an attempt to board a cable car running at full speed is negligence.3 And a passenger about to board a slowly moving street car must observe whether there are any obstacles outside the car in plain sight which make it dangerous for him to get on board; and therefore a passenger who is struck by a truck just after he has gotten on the car steps, and before the car has gone eight feet, cannot recover. So one who attempts to get on a horse car while it is in motion, after being directed to wait until it stops, and who persists in the attempt to get on board, and is injured by running

tempt to board a moving street car is generally a question for the jury, taking into consideration all the circumstances in evidence in the case. Omaha St. Ry. Co. v. Martin, 48 Neb. 65, 66 N. W. 1007. Whether or not a man 68 years old, and weighing 200 pounds, is guilty of contributory negligence in attempting to board a horse car, after he has signaled the driver, and after the car has slowed up, and is moving about four miles an hour, is a question for the jury; nor can the court say, as matter of law, that his attempt to board the car under these circumstances is negligence, even if no signal is known to have been given to the driver. Briggs v. Railway, 148 Mass. 72, 19 N. E. 19. Whether a passenger, in getting on a horse car while it is in motion, is or is not in the exercise of due care, is a matter for the determination of the jury, under all the circumstances of the case. North Chicago St. Ry. Co. v. Williams, 140 Ill. 275, 29 N. E. 672; Id., 20 Ill. App. 275. One injured in an attempt to board a street car cannot recover if the car was moving at its usual rate of speed,-eight or nine miles an hour; but he is entitled to recover if the car had stopped, or was in the act of stopping, or was in such condition of running or stopping as induced him to think it was about to stop. Walters v. Traction Co., 161 Pa. St. 36, 28 Atl. 941.

8 Chicago City R. Co. v. Delcourt, 33 Ill. App. 430.

4 Moylan v. Railroad Co., 128 N. Y. 583, 27 N. E. 977, reversing 59 Hun, 619, 13 N. Y. Supp. 494.