THE CITY OF SEATTLE. PACIFIC COAST CO. v. JENKINS, 150 F. 537

GILBERT, Circuit Judge, after stating the case as above, delivered the opinion of the court: The appellants, by their answer, admit that the vessel in her regular course touched at the wharf at Ketchikan; that no objection was made to persons coming on board to visit passengers while she was there; that before leaving the wharf a warning whistle was always sounded; and that the appellee boarded the vessel with their implied permission.

The substance of their affirmative defense is that the appellee had ample opportunity, after the whistle was sounded, to have left the vessel, and that, when the master became aware of his presence, it was then not feasible to land him, for the reason that the night was dark and stormy; that, after the stern line had been hauled in and the head line had been loosed, the wind threw the vessel’s stern out into the bay; and that, before the heaving lines could have been made ready and bent on the stern line, the ship would have been broadside in the channel and in a dangerous position.

Was it error to enter a decree dividing the damages and adjudging that the appellants pay one-half thereof, in the face of the facts so alleged? We think there is stated in these allegations no fact from which the court can see that the conditions of weather and tide were different at the time of leaving the dock from the conditions that prevailed before touching there, or that it would have been more dangerous or difficult to make a second landing Than it had been to make the first. The appellee went upon the steamer upon the implied invitation- of the owners.

The latter were bound to exercise ordinary care to avoid injury to him. St. Louis I. M. & S. R. Co. v. Fairbairn, 48 Ark. 491, 4 S. W. 50; Orcutt v. Northern Pacific R. R. Co., 45 Minn. 368, 47 N. W. 1068; Lucas v. New Bedford & T. R. Co., 6 Gray (Mass.) 64, 66 Am. Dec. 406; Griswold v. Chicago & N. W. R. Co., 64 Wis. 652, 26 N. W. 101.

It is true that it is held that, where one gets upon a train at a station to meet or aid a passenger, and is carried away by the train, the railroad company, in the absence of knowledge by its servants of bis purpose, is not-responsible in damages for an injury which he may sustain in attempting to leave the train after it has started on its way, and that such a visitor is bound to know of the movement of the train. Coleman v. Georgia R. & Bkg. Co., 84 Ga. 1, 10 S. E. 450; Little Rock & Fort S. R. Co. v. Lawton, 55 Ark. 428, 18 S. W. 543, 15 L. R. A. 434, 29 Am. St. Rep. 48; Texas & P. Ry. Co. v. McGilvary (Tex.

Civ. App.) 29 S. W. 67; International & G. N. R. Co. v. Satterwhite (Tex. Civ. App.) 38 S. W. 401. But, in cases where notice of the presence and purpose of the. visitor has come to the servants of the carrier who are operating the train, the rule is otherwise, and they are bound to give him a reasonable opportunity to depart. Houston v. Gate City R. Co., 89 Ga. 272, 15 S. E. 333. In Griswold v. Chicago & Northwestern Railroad Co., 64 Wis. 652, 26 N.

W. 101, it was held that, had any of the operatives of the train been informed or had reason to know that the plaintiff was on board of one of the cars for such a purpose, the company would have owed him the duty to have delayed the train a reasonable time for him to get off. And, in Missouri, K. & T. Ry. Co. v. Miller (Tex. Civ. App.) 39 S.

W. 583, the court said: “It became defendant’s duty, if it had allowed or. indulged the act that plaintiff was engaged in, to so regulate the movement of the train as would admit of his getting off without injury to himself.” If it is the duty of a carrier to delay starting under such circumstances, it would seem to be equally its duty, after having started, to stop and permit a visitor to leave, and it is but carrying that doctrine to its legitimate conclusion to hold that, under circumstances demanding such a degree of care, it might become the duty of a carrier, after starting, to stop and return to the starting place, if necessary to prevent serious injury to the visitor.

Obviously the magnitude of the threatened injury is a factor in determining what, under such circumstances, the carrier’s duty shall be.

Notwithstanding the appellee’s negligence as alleged in the answer, the appellants owed him the duty not to wantonly injure him, and we think that, when knowledge came to the master of the steamer that the appellee was on board and demanded to be put ashore, it was his duty, in view of the long voyage he was about to undertake and the very considerable injury it would inflict upon the appellee to carry him, unprepared as he was, away from his family and his occupation for so long a period of time, to bring the vessel back to the dock for the purpose of permitting him to leave.

The appellants, it is true, by their answer allege that it was not practicable to do this, but the facts which they set forth are insufficient to show that it was not practicable. The decree of the District Court is affirmed. MORROW, Circuit Judge, did not participate in the decision.