
    Morgan v. Camden & Atlantic R. R. Co.
    A passenger, in broad daylight, in alighting from a railway train, at a crossing, a regular stopping place to discharge and receive passengers, without either a station-house or a platform, stepped off on the side on which was another track and was injured by a passing train. In an action for damages for negligence on the part of the railroad company, the plaintiff testified that the reason he got off on the track side was because the step on the other side overhung a ditch. He further testified that there was such a curve in the railroad track that, in alighting, he could not see around the engine of the train from which he was alighting; that he looked up and down the track, saw nothing, heard nothing, and started to cross, when he was struck. Plaintiff’s son testified that the curve in the track was so great that one, standing on the track, could not see up the track further than 200 or 400 feet. He also testified that the plaintiff stopped and looked before starting to cross. There was evidence that no signal was given by the approaching train. Witnesses, produced by the plaintiff, gave evidence of contributory negligence by testifying that the plaintiff stepped down immediately in front of the approaching train. The court entered a compulsory non-suit.' Held, not to-be error. *
    Per Curiam. — Had the plaintiff used his eyes, he could not have failed to see the approaching train, and at a sufficient distance to have avoided the accident. . . . There was neither allegation nor proof that it was unsafe to get off on the side wheré passengers usually alighted, and if, to avoid it, the plaintiff voluntarily got off at a Jenown place of danger, he has no one to blame but himself. ,
    Jan. 9, 1889.
    Error, No. 126, July T. 1887, to C. P. No. 2, Phila. Co., to review a judgment of compulsory non-suit in an action on the case for personal injuries, at Aug. T. 1-885, No. 133.
    The evidence was to the following effect: On July 13, 1881, the plaintiff was a passenger, in the smoking car, on defendant’s railroad, going into Camden. His destination was “.Kaighn’s Avenue Crossing,” in the city of Camden, which was a regular stopping-place for discharging and receiving passengers, but at that time there was no station house or platform there. There are two tracks at .this point on defendant’s railroad. The plaintiff, between six and seven o’clock in the evening, it being still broad daylight, alighted from the front end of the car, on the left-hand or track side, and, while crossing the second track, was struck by another train moving rapidly out of the city. There was a space of some four feet between the tracks.
    The plaintiff testified, inter alia, as follows:
    “ The curve was so great that when I got down onto the bottom step of the car that I got off and looked up the. road and could see nothing but the engine ahead of us. I stood on tlie step and .looked Tip the road, and then looked down the road, and stepped off. . . . I stepped down and was walking leisurely away from the train. ^ I saw no danger and saw nothing coming. Q. Did you hear' any whistle or bell, or any noise of any approaching train ? A. No, sir I did not hear anything. Q. When you left the train was it standing still or in motion ? A. It was standing still. Q. And you heard no other train? A. No, sir. We got down, or I got down, and walked off leisurely ahead and I got into the middle of the track. It appeared to me as if the train come up out of the ground, it came that quick on me. I hadn’t time to either go back or go forward. There I was. I was struck and badly hurt — thrown across the road • — and have been suffering ever since. That is all I can say about it. . . . Q. State whether or not there was any reason why you could not get off on the right-hand side of the train. A. Yes, sir. Q. What was it ? A. Simply because on the right-hand side of the train the grade of the road was so much higher than it was in the centre. It was a better place to get off on the left. It was a leveler surface and an easier place to get down than it was on the right. Q. Do you know whether or not the car was on a level when you got off? A. Yes, sir; it was on the level. Q. And the bank was-on the right-hand side ? A. Yes, sir.”
    Plaintiff’s son testified, inter alia, as follows: “ Q. Can you state whether or not there is a bend in the road at that place? A. Yes, sir; there was a bend — well, you couldn’t see anything two hundred feet, I was going to say, away from it — except trees. Q. Which way does the curve bend ? A. It bends westward. . . . Q. From Kaighn’s Avenue how rapid was this curve ? A. You couldn’t see a, train on the track four hundred feet, unless you would come out nine feet westward of the down track. . . . I saw my father look up toward Camden, and thence toward Haddonfield; that is, in the direction of Haddonfield, because he was in advance of me. Q. Then what occurred? A. He was struck. I didn’t see him struck, but I know that he was struck. Q. Were you struck? A. Yes, sir. . . . After I stepped down, in looking up I looked around Another thing — what hindered the view, the car we were in was in the rear of the train, I am almost positive. Of course I couldn’t see anything but the railroad track and gravel. That was all I could see —or coal dirt. Q. Your own train obscured the view until the car gets there? A. Yes, sir ; the one that I came up in.”
    Several witnesses testified that no signal was given by the approaching train.
    A witness testified, inter alia, as follows: “ Just as the train came to a standstill, to a stop, two men passed out of the car. This man (referring to plaintiff) was in the lead; he went down the steps with his head down, and, just about the time that he landed, I saw this train coming. • At one and the same time he was thrown in the air, and the other man was knocked somewhere I couldn’t tell where. That was all I saw of it. The other train moved on and blocked my seeing anything-further.”
    
      Another witness testified, inter alia: “ When they got off, I stepped up to look out of the door, and I saw Mr. Morgan just crossing the track. There was no engine or anything at the present time, as I seen, but I turned around to speak to one of the '.other men that was getting off, and when he got off he hallooed ‘ Goodbye ’ to me, and I turned and looked and saw a train cpming. I hallooed to Mr. Morgan, ‘For God’s sake, look out; you will get struck.’ Before Mr. Morgan could step either one way or the other the train was on him.”
    Another witness testified, inter alia: “ I was sitting on this side of the car, the left-hand side, right close to the window, as I gen-, «rally did sit. I saw the train coming just as he was in the act of stepping off the step. I saw the train coming out. I could see it from- where I was sitting, that is, I could see diagonally through the window the end of the train coming. Just at that moment, as it •didn’t take but a moment, he was struck and went into the air all in a second.”
    Another of plaintiff’s witnesses testified, inter alia: “ Q. Did you see the accident — did you see them struck? A. Y% sir; I saw it. Q. State what you saw. A. We got off the train at the avenue. 1 got off the rear end. Q. And crossed over the’ track ? A. .Yes, sir. Q. When did you first see the locomotive? A. When I stepped off the step I got down and got in the middle of the track, and 1 happened to' turn my head and look, and I gave a halloo and jumped, and with that I saw Morgan going up. Morgan went up, and it flung him on the other side of the avenue. Q. Did you. have to jump; was there any occasion for your jumping? A. Yes, sir; I liad- to. If I did not it would have hit me. I had to get off, there as quick as I could.”
    At the' conclusion of plaintiff’s testimony, the court below entered a compulsory non-suit, and, on motion, subsequently made, refused to take it off. ' '
    
      The assignments of error specified the action of the court, 1, in entering a non-suit; and, 2, in refusing to take it off. • ;
    
      Leoni Melick, for plaintiff in error.
    “ It is the duty of q, railroad company to exercise the strictest vigilance, not only in..carrying passengers to their destination, but also in setting them down safely, if human care and foresight can do so.” The rule that a pefsop about to cross a railroad track is guilty of negligence, per se, unless he first stops, looks and listens, “ is not always applicable to passengers leaving a train and crossing the track to reach the depot at the point of destination.” “ He might reasonably assume, un.dpr the circumstances, that he could safely cross the track and reac]i the platform without fear of a train passing while his train was thpre.” Sterret, J., in Pa. R. R. v. White, 88 Pa. 338. . "
    “ If the earners have not provided a safe means of egrese from the train, the law will undoubtedly fmld. them responsible' 'for injuries under such circumstances, unless in case of gross negligence on the part of the passenger.” Thompson, J., in Pa. R. R. v. Zebe, 37 Pa. 423; McKemble v. R. R., 141 Mass. 163.
    A different degree of care is to be exercised where there is reason to apprehend danger from that which is necessary where none is to be expected. Pa. R. R. v. Ogier, 35 Pa. 60.
    Whether plaintiff did look and listen was for the jury. Johnston v. Beremer, 61 Pa. 58; Canal Co. v. Bentley, 66 Pa. 30.
    Disputed facts are for the jury even when there is a conflict in the plaintiff’s case, and it is only when the evidence in the plaintiff’s case is conclusive of contributory negligence that the case should be taken from the jury. Predeaux v. Mineral Point, 43 Wis. 524: Hoyt v. Hudson, 41 Wis. 105.
    But if it be admitted that plaintiff failed to stop, look and listen, still, under the circumstances, if “ he might reasonably assume that he could safely cross the track without fear of a train passing while his train was there,” as in R. R. v. White, ante, his not doing so was not negligence per se.
    
      Gavin W. Hart, with him David W. Sellers, for defendant in error.
    “A traveler, approaching a railroad track, is bound to use his-eyes and ears, so far as there is an opportunity; and where, by the use of these organs, danger may be avoided, notwithstanding the neglect of the railroad company’s servants to give signals, the omission of the plaintiff to use his senses to avoid danger is concurring negligence.” Henze v. R. R., 71 Mo. 636; R. R. v. Houston, 5 Otto, 702; Schofield v. R. R., 114 U. S. 615.
    The rule is that “ a man may fairly be presumed to see what he can see when it is his duty to look for it, but he cannot be presumed to see at a particular time what is not - shown- to have been visible at the time.” Schum v. Pa. R. R., Pa. 8.
    Where the evidence shows that looking will disclose the fact of a coming train, the testimony of claimant that he did look is of no avail, if the uncontradicted testimony of other- witnesses shows that he must have seen if he had looked. Pa. R. R. Co. v. Bell, 22 W. N. C. 370; Carroll v. R. R., 12 W. N. C. 348.
    Jan. 21, 1889.
   Per Curiam,

We cannot say that it was error in the court below to refuse to take off the non-suit. The undisputed evidence in the case shows that the plaintiff below was a passenger on the railroad of the defendant company. His destination was Kaighn’s Avenue Crossing in the city of Camden. The said Crossing was a stopping place to discharge and receive passengers, but without either a station or platform. The train stopped there, on the occasion referred to, and the plaintiff, instead of getting off on the side where passengers usually alight, stepped off on the other, or track, side of the road, and was injured by a passing train. Had he used his eyes, he could not have failed to see the approaching train, and at a sufficient distance to have avoided the accident. We have repeatedly said that a man who deliberately or negligently steps in front of an approaching train has no cause of action in case of injury. As was said in the case of Carroll v. Pa. R. R. Co., 12 W. N. C. 348: “ It is in vain for a man to say that he looked and listened, if, in despite of what his eyes and ears must have told him, he walked directly in front of a moving locomotive.” To the same point is the recent case of R. R. Co. v. Bell, 22 lb. 370. The reason given by the plaintiff for getting off on the wrong side has little force. He said : “ It was a better place to get off on the left. It was a leveler surface and an easier place to get down than it was on the right.” Yet there was neither allegation nor proof that it was unsafe to get off on the right, where passengers usually alighted, and if, to avoid it, the plaintiff voluntarily got off at a known place of danger, he has no one to blame but himself for this unfortunate accident.

Judgment affirmed. W. T. B.  