ILLINOIS CENT. R. CO. v. WARREN, 149 F. 658

PARDEE, Circuit Judge (after stating the facts). On a railway passenger train the announcement of the next station, although made on near approach to said station, is not an invitation to a passenger to leave his seat and attempt to alight before the train actually stops. This proposition is supported by Adams’ Adm’r v. Louisville, etc., R. Co., 82 Ky. 607; Railroad Co. v. Asbell, 23 Pa. 147, 62 Am. Dec. 323; Jeffersonville, etc., R. v. Hendricks’ Adm’r, 26 Ind 228; England v. Boston, etc., R. Co., 153 Mass. 490, 27 N. E. 1; Lewis v. London, etc., R. Co., L. R. 9 Q. B. 66; Bridges v. North London, etc., R.

Co., L. R. 6 Q. B. 377.

According to Warren’s evidence, corroborated by his main witness, his brother-in-law, Kelly, on the announcement of the train porter that the next station was Oxford, Warren, for the purpose of resuming custody of the negro Mctílon and of getting off and away quickly, left his seat in the smoking compartment while the train was in motion, and went forward through the colored compartment to the front door of the car, which he opened, and stood there waiting evidently for the train to slow down, with his right foot on the door sill, his left foot on the platform, and his right hand on the door facing, from which position he was knocked or pushed, so that he fell off the car while the train was in rapid motion, and thereby was injured In thus going to the front of the car and taking the position described while the train was in rapid motion Warren was guilty of negligence, which unquestionably contributed to his subsequent injury.

See Alabama R. Co. v. Hawk, 72 Ala. 112, 47 Am. Rep. 403; Blodgett v. Barfelett, 50 Ga. 353; Beemis v. Railroad Co., 47 La. Ann. 1671, 18 South. 711; Quin v. Railroad Co., 51 Ill. 495; Rockford Co, v. Coultas, 67 Ill. 398; Railroad Co. v. Green, 81 Ill. 19, 25 Am. Rep. 255; Malcomb v. Railroad Co., 106 N. C. 63; 11 S. E. 187; President, etc., v. Cason, 72 Md. 377, 20 Atl. 113; Goodwin v. Railroad Co., 84 Me. 203, 24 Atl. 816; Secor v. Toledo, Peoria & W. R. Co. (C. C.) 10 Fed. 15. According to Warren’s evidence, he was pushed or knocked off by the train porter.

Neither he nor any of his witnesses testify as to whether the action of the train porter was accidental, negligent, or intended and willful. If the action of the train porter was accidental or even negligent, but not willful, Warre.n cannot recover from the railroad company, because in taking his position in the door and on the platform of the car, uiider the circumstances conceded in his evidence, he was guilty of negligence which contributed to his own injury.

If the action of the train porter was willfully intended, then Warren can recover, because it is the duty of a common carrier to warn and protect and not to injure a passenger, who may have even negligently exposed himself to injury.

A careful analysis of the evidence of Warren and his witnesses, giving full effect thereto and reinforcing the same with the deductions that reasonable men may draw therefrom, brings us to the conclusion that there was no evidence nor deduction from the same sufficient to warrant a finding that the train porter was guilty of willfully pushing or knocking Warren as he stood in the door and on the platform of the moving car.

On the whole evidence, direct and circumstantial, the jury would have been fully warranted in finding that the train, porter had nothing whatever to do with pushing or knocking Warren from the car. We conclude that on the evidence of the plaintiff and his witnesses the peremptory instruction to find for the defendant on the issue of contributory negligence should have been given.

If the concluding statement in the bill of exceptions means' that the jury was unduly influenced in their verdict by their feelings and sympathies for the plaintiff, Warren, and his miserable condition, the trial judge should have granted a new trial on that ground.

As, however, the statement of the judge does not specifically find the undue influence and prejudice as a fact, and as he refused a motion for a new trial based on this and other grounds, we must construe the bill of exceptions to mean that, while the facts were as stated, the jury was not unduly influenced thereby. • , The judgment of the Circuit Court is reversed, and the cause is remanded, with instructions to set aside the verdict and grant a new trial.