SPIESBERGER v. MICHIGAN CENT. R. CO., 235 F. 864

ALSCHULER, Circuit Judge (after stating the facts as above). It is insisted for defendant that the record fails absolutely to show. any negligence on the part of the company. If this is so, the court’s direction of verdict was right. A plea was filed denying that the porter who called the stations was an employé of defendant, but there was no proof as to whether he was or not.

However, he was in apparent charge of a car which was a part of the company’s train, used to transport its passengers, and it does not appear that there was any one else in that part of the train to whom the company delegated its very useful and usual function of announcing the stations. Though passengers are in a parlor car which may belong to some other concern, they are none the less the passengers of the company, and the porter of the car, whether directly employed by the company or through some other instrumentality, is with respect to the passengers, and their safety, acting for the company. Penna. Co. v.

Roy, 102 U. S. 451, 26 L. Ed. 141; Calhoun v. Pullman Co., 159 Fed. 387, 86 C. C. A. 387, 16 L. R. A. (N. S.) 575; L. & N. Ry. Co. v. Ray, 101 Tenn. 1, 46 S. W. 554; Campbell v. Seaboard Air Line Ry., 83 S. C. 448, 65 S. E. 628, 23 L. R. A. (N. S.) 1056, 137 Am. St. Rep. 824.

In announcing, after leaving Fifty-Third Street, that Forty-Third street would he the next stop, the jury might have been justified in concluding that, when a stop was made a few moments thereafter, the company might reasonably have anticipated that passengers would infer it was the station announced; and, if the vestibule doors and the trapdoors were open, that passengers for the station announced would he likely to assume they were expected to alight, particularly if the place of stoppage was in fact a station, the night dark, and the train lighted so it might he difficult for the passenger, however generally familiar with the surroundings, to readily realize just where he was or that the place of stopping was not the station announced.

And if in such situation passengers bound for the station announced are about to alight, and, by a sudden jerk of the train, are thrown off and injured, for the court to say as a matter of law that the evidence fails to show negligence on the part of the company is clearly an invasion of the jury’s province. That under generally similar circumstances juries may properly find the carrier negligent as a basis for awarding damages to passengers sustaining injuries in consequence has been decided in numerous cases. Some of them are: Washington & Georgetown R. R. Co. v. Harmon, 147 U. S. 571, 13 Sup. Ct. 557, 37 L.

Ed. 284; B. & O. S. W. R. R. Co. v. Mullen, 217 Ill. 203, 75 N. E. 474, 2 L. R. A. (N. S.) 115, 3 Ann. Cas. 1015; Ward v. C. & N. W. R. R. Co., 165 Ill. 462, 46 N. E. 365; C. & A. R. R. Co. v. Arnol, 144 Ill. 261, 33 N. E. 204, 19 L. R. A. 313; Bartle v. N. Y. C. & H. R. R. R. Co., 193 N. Y. 362, 85 N. E. 1091; Dallas v. I. C. R. R. Co., 144 Ky. 737, 139 S. W. 958; Wolf v. C. & N. W. R. R. Co., 131 Wis. 335, 111 N. W. 514; C. H. & I. R. R. Co. v. Revalee, 17 Ind. App. 657, 46 N. E. 352; C. H. & I. R. R. Co. v. Worthington, 30 Ind. App. 663, 65 N. E. 557, 66 N. E. 478, 96 Am. St. Rep. 355; P. & R. R. R. Co. v.

Edelstein (Pa.) 16 Atl. 487; Phila., etc., R. R. Co. v. McCormick, 124 Pa. 427, 16 Atl. 848; Balto. & P. R. R. Co. v. Jean, 98 Md. 546, 57 Atl. 540. With like urgency it is insisted that the record conclusively shows plaintiff’s own negligence contributed to his injury; and if this is so the judgment of the District Court must stand, for, notwithstanding any proof of negligence of the company, if the plaintiff’s own negligence contributed to his injury he has no cause of action. One cannot well consider the question of the company’s negligence without at the same time considering that of the plaintiff.

What the company might reasonably expect of passengers in a given situation is of the essence of the question of the company’s negligence; and whether or not passengers might reasonably be expected to do those things, or he in such situation, would have like bearing on the question of the negligence of the passenger. When a station is announced, and its near approach reasonably expected, it cannot be said to be negligence per se for passengers to get ready to leave the train.

Common experience shows that, if their preparation for departure did not begin until the station was actually reached and the train had stopped, they would most likely be carried beyond their destination. They must not unreasonably expose themselves to danger by going upon the platforms of rapidly moving trains; but where the train is apparently slowing down for the station announced, and is seemingly about to stop, it is not necessarily negligence in the passenger to go out upon the vestibuled platform or to begin descending the steps before the train has actually and fully stopped.

Whether in going on the platform and steps the passenger manifests negligence for his own safety is ordinarily not a question of law for the court; but is for the jury. Thomas et al. v. San Pedro L. A. & S. Ry. Co., 170 Fed. 129, 95 C. C. A. 371 (9th C. C. A.); St. L., I. M. Ry. Co. v. Leftwich, 117 Fed. 127, 54 C. C. A. 1; Northern Pac. Ry. Co. v. Adams, 116 Fed. 324, 54 C. C. A. 196; Larson v. M. & St. L. R. R. Co., 85 Minn. 387, 88 N. W. 994. In B. & O. R. R. Co. v. Meyers, 62 Fed. 367, 10 C. C.

A. 485, this court was passing on a case where a passenger desiring to leave the train at a station was informed that no station stop was made there, but the brakeman told him the train stopped at a nearby railroad crossing, and he would notify the passenger so that he might leave at such crossings When about a mile from the crossing and while the train was running rapidly, the brakeman opened the door and beckoned to' the passenger, who thereupon went upon the platform, standing there and holding firmly to the railing, and, while so standing waiting for the train to stop, the unnecessarily sudden application of the air brakes caused such a jerking of the train as to throw off and injure the passenger.

It was urged that by placing himself in this dangerous position the passenger so far contributed to the accident as to bar his recovery of damages. The court said: N “But whether or not. one is guilty of negligence in standing upon the platform of a car in motion is dependent upon the circumstances of the case, and is determined by the consideration whether a reasonably prudent man, under the circumstances existing, would have done so or not. The duty of the passenger is dictated and measured by the exigency of the occasion.

Here the defendant in error had announced to him, by the act of the brakeman, that the train was about to come to a stop. * * * He had a tight to presume that the train was abating its speed, with a view to stopping. We think it was a proper question to be submitted to the jury whether the defendant in error, under the circumstances, was guilty of

an act which a reasonably prudent man in like situation would not have done.” Negligence cannot be predicated upon that which cannot reasonably be anticipated.

If the plaintiff and the other passengers from both cars, who were coming out upon the platform in the evident belief that the stop for Forty-Third street was about to be made, acted in that respect as might reasonably be expected of ordinarily prudent passengers in like situation, there was no negligence in their so acting; and, if in this situation they could not reasonably have anticipated that the train would start with a sudden jerk of sufficient violence to be dangerous to their well being, they are not as a. matter of law chargeable with contributory negligence in failing to anticipate danger from such a cause.

We are satisfied from the record that the issues of defendant’s negligence and of plaintiff’s contributory negligence were not determinable by the court as matters of law, but were for the jury. The judgment of the District Court is reversed, and the cause remanded, with direction to grant a new trial.