Supreme Court of United States.
*216 Mr. Charles E. Flandrau for plaintiff in error.
Mr. M.D. Munn, (with whom was Mr. Cushman K. Davis on the brief,) for defendant in error.
*217 MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.
Practically the only question in this case is whether the evidence so clearly showed the plaintiff to have been guilty of contributory negligence as to entitle the defendant, as matter of law, to an instruction to the jury to return a verdict in its favor.
It was not seriously contended that the defendant was free from fault in failing to stop its train, in compliance with its own rule, which demanded that "when a train is standing on a double track for passengers, trains from the opposite direction will come to a full stop, with the engines opposite to each other, and proceed slowly until trains are past." In view of the frequency of accidents occurring to passengers crossing one track at a station, after alighting from a train standing upon another track, the rule is doubtless a proper one, and if it had been observed on that evening, this accident would probably not have occurred. In determining whether the plaintiff was so clearly guilty of contributory negligence as to *218 entitle the defendant to a verdict, we are bound to put upon the testimony the construction most favorable to him, and to assume that the eastward bound train did not stop opposite the other engine, but that it was passing at the rate of twenty miles an hour; that it gave no signal by whistle or bell, and carried no headlight upon the rear or east end of the engine. If such were the facts, there could be no doubt of the gross negligence of the defendant.
We are of the opinion that there was no absolute obligation on the part of the plaintiff to cross the track by way of the ravine known as Victoria Street. To do this would have required him to descend a flight of steps at the east end of the station, about fifteen feet to the level of the street, which was not graded or in any way improved, but was a natural ravine passing under the tracks at this point. There was a stream of water varying in width from two to six feet, and in depth from two or three inches to two feet, running over the surface of the street under such tracks. The ground beneath the tracks was marshy, muddy, and wet at the time; the street was uneven and irregular, and there were no lights or other illumination along the street at that point, and the night was dark. It seems to have been the universal custom for all persons living on the south side of the tracks to cross over the tracks in going to their homes, and not under the tracks by Victoria Street. Under such circumstances, the plaintiff had a right to make use of the customary mode of alighting and reaching his home.
The case resolves itself into the question, then, whether the plaintiff was, as matter of law, guilty of negligence in failing to get off the train on the north side, there being in the opinion of the court no question that if he had alighted upon the platform and waited until the train passed he would not have been injured. There was, it is true, a notice conspicuously posted at each end of the smoking car, in which plaintiff was riding, requiring passengers leaving the car at the forward end to turn to the right and at the rear end to turn to the left, and avoid danger from the trains on the opposite track. There was testimony tending to show that this notice had *219 never been read by the plaintiff. Assuming, however, that he was bound to read it, and was chargeable with knowledge of its contents, there was other testimony tending to show that it was habitually disregarded by passengers with the acquiescence of the conductor and the servants of the road about the station. There was evidence that plaintiff and his companion Fosberg were met upon the platform of the car by the collector, who asked for their tickets, which were delivered to him; that the collector saw them get off on the south side and said nothing to them, but immediately upon receiving their tickets entered the smoking car; that no objection was raised to their getting off upon the south side, and that other people were in the habit of getting off in the same way. Now if the custom of passengers to disregard the rule was so common as to charge the servants of the road with notice of it, then it was either their duty to take active measures to enforce the rule, or to so manage their trains at this point as to render it safe to disregard it. A railway company does not discharge its entire obligation to the public by a notice of a certain requirement, permitting the requirement to be generally disregarded, and then proceeding upon the theory that every one is bound to comply with it. If, in such case, an accident occur, the defendant should not be allowed to rely exclusively upon a breach of its regulation. In this particular the case resembles that of the Dublin &c. Railway Co. v. Slattery, 3 App. Cas. 1155, in which the House of Lords held that a notice not to cross the tracks which the company had permitted to fall into desuetude and made no attempt to enforce, did not debar the plaintiff, who had disregarded it, from a recovery. Had the plaintiff complied with the notice and alighted upon the platform, he would still have been obliged to cross the track with the same possibility of being struck by a passing train that confronted him in this instance. There was, in addition to this, some evidence to go to the jury that it was customary for persons living on the south side of the track to get off the train on that side, as the plaintiff did, and none that they were in the habit of crossing by way of Victoria Street.
*220 In his manner of leaving the train there seems to have been no negligence. He took hold of the iron railing at the end of the platform on the right-hand side, stepped down with the left foot first and faced towards the west on the south-line track, saw or heard no train coming upon that track, and supposed that he was perfectly safe in crossing, as he knew that no train was then due. It is in this connection, and under these circumstances, that the question of the necessity was to be considered. While there may have been nothing which the law would recognize as a special necessity that evening for his getting off on the south side, if it were usual and customary for passengers to do so, and it was not manifestly dangerous, and the plaintiff had been in the habit twice each week for six months prior thereto of alighting in the same manner, and in doing this he took the precaution to get off in such a way, that if a train properly lighted had been coming, he could not have failed to see it, it would be a question for the jury whether he was guilty of contributory negligence in disregarding the notice. In this view it is possible that the charge of the court to the effect that unless there was some existing necessity established by the testimony authorizing the plaintiff to alight from that side of the train and cross over the tracks, he could not recover, was too favorable to the defendant. But, however that may be, it seems to have been subsequently qualified by the court saying that if passengers embarking upon or alighting from the train at that point went customarily over that route, then the mere fact that the plaintiff did cross there in order to reach his home cannot of itself be considered negligence, and leaving it for the jury to say whether, under the circumstances of this case, the plaintiff should not have obeyed the rules and regulations of the company, and have alighted upon the platform. The charge as a whole was sufficiently favorable to the defendant, and the question of negligence was a proper one for the jury in other words, proof that the plaintiff violated the regulations of the company, even without the excuse of a cogent necessity, will not as matter of law debar him from a recovery.
The judgment of the court is, therefore,
Affirmed.
*221 MR. JUSTICE GRAY and MR. JUSTICE SHIRAS concurred in the result, because the only ruling in matter of law requested or made at the trial on the question whether the defendant was entitled to a verdict, by reason of contributory negligence of the plaintiff, was upon a motion made at the close of the plaintiff's evidence and before the defendant had rested its case, and therefore, by the settled rule, could not be the subject of exceptions or error; Columbia Railroad v. Hawthorne, 144 U.S. 202, 206; Bogk v. Gassert, 149 U.S. 17, 23; and because the instructions given and duly excepted to were sufficiently favorable to the defendant.
