LENNON v. CANADIAN PAC. RY. CO., 192 F. 111

NOHLSAAT, Circuit Judge (after stating the facts as above). Thfere is-nothing in the record'to justify the assignment of error based upon the claim that the court found plaintiff in error guilty of contributory negligence as a matter of law. The court found that defendant jn error, was guilty of no negligence, and that the accident was attributable alone to the negligence of the plaintiff in error.

The substance of the issue here presented is: Did the defendant in error do or fail to, do anything in the premises, which, under the rule of liability obtaining between a carrier and a passenger, could have been anticipated, by it as likely to result in personal injury.to the passenger While in the exercise of reasonable care?

Could'the defendant in this case,.in the exercise of that great'degree of-care required in such-case,- have reasonably - anticipated that the plaintiff would leave her berth at the hour of 2 o’clock in the morning, pass through the sleeping car vestibule onto the rear platform of the day coach, descend the steps thereof to the ground, wait until' the train started, then unsuccessfully attempt to regain the platform1 and be thrown under the wheels? In Laub v. Chicago, B. & Q. Ry. Co., 118 Mo. App. 488, 499, 94 S.

W. 550-553, the court, speaking of the right of a passenger to leave the train at an intermediate station for the purpose of exercise and relaxation says: ‘‘But the cases where a passenger may temporarily leave the train at an intermediate point, without being guilty of negligence, are, at most, exceptions to a general rule.

Ordinarily a passenger's place is in the cars provided by the carrier for the carriage of passengers. * * * Stops at way stations usually are very brief, and the trainmen generally are busily engaged in the performance of imperative duties that should not be increased by passengers who have no better reason for leaving the cars than curiosity or caprice.

Obviously, a passenger, who from such motives leaves the train on a dark night at an intermediate station, where only a momentary stop is made, and permits it to pull out and leave him, voluntarily subjects himself to an unnecessary risk, and his own negligence should be regarded as the proximate cause of an injury he may receive in his efforts to overtake the train. The carrier is under no duty to anticipate that he will do a thing so foolish. * * * ” It must be assumed that the defendant knew the destination of its passengers, and that there was no one in the sleeper who expected to leave the train at Windsor.

Its trainmen could not have anticipated that a passenger would leave the sleeper and go onto the day coach platform, or otherwise expose herself to the dangers or temptations of an open vestibule door; nor can it be claimed that the absence of a closed vestibule door on another car platform is an invitation to a passenger upon a neighboring car to alight, the acceptance of which invitation it was the duty of the carrier, in the exercise of its required care toward a passenger, to anticipate and render impossible.

Surely the defendant could not have foreseen that a young woman, unattended, would leave the train in such a spot and at such an hour. In Cain v. Louisville & N. R. Co. (Ky.) 84 S. W. 583, a suit brought by a young woman who had left a train at an intermediate station by mistake, and who had received injuries in attempting to-walk to the next station, it was held that: “The conductor had no right to suppose that she would get off the train at a station other than the one for which her ticket called.

He had the right to presume that a girl of her age was possessed of sufficient intelligence-to remain on the car until her station was called.” In the case at bar, nothing short of actual knowledge of plaintiff’s peril could have cast upon defendant any responsibility for her injuries. The evidence discloses no such knowledge. The claim that the trainmen failed to give the usual or other signals on starting up, even were she entitled to raise that question, is not sustained by her testimony. She simply did not hear them.

Under all the facts of the case, there is no rule of law which makes the railroad company liable for her accident. It was one of those distressing events which. happen out of the regular course of things, due to conditions for which the defendant was not to blame, and for which it would be unjust to hold the carrier responsible. The judgment of the Circuit Court is therefore affirmed.