
    Thomas G. Collins v. Southern Railway Company.
    [42 South. Rep., 167.]
    Railroads. Boardmg train.* Negligence.
    
    In the absence of a .showing that he was seen by an employe of defendant, a plaintiff is not entitled to recover of a railroad company for injuries suffered from the sudden jerking of a train on which he sought to take passage, where he seized the handhold of one of the coaches before the train stopped, but as it approached a crossing where it generally stopped, although it was the custom of the company to slow down its trains before reaching the crossing, and persons becoming passengers there were accustomed to grasp the handhold and walk along with the train until it stopped before boarding it.
    From the circuit court- of Washington county.
    Hon. A. McC. Kimbrough, Judge.
    Collins, the appellant, was plaintiff and the railroad company, the appellee, defendant in the court below.
    The suit was for damages for personal injuries sustained while attempting to board one of the trains of the defendant, the Southern Railway Company, and from a judgment sustaining defendant’s demurrer to his declaration and dismissing the suit, he appealed to the supreme court.
    The declaration alleged that under the ordinances of the city of Greenville, where the accident occurred, all steam and electric railways are required to bring their cars to a full stop at all crossings; that the crossing at which tbe accident occurred was within the city limits, and that it had been the custom of the Southern Railway Company to slow down before reaching this crossing, and sometimes to come to a full stop, and sometimes to run very slowly without coming to a full stop; and that, if the train did come to a full stop, it was only for a moment. It alleged that it had been the constant practice and custom of persons, intending to take passage on the train of the defendant company, to board tbe train at this crossing when it stopped or slowed down; tbat the defendant company bad, “without objection, permitted, allowed, encouraged, and invited any intending passengers to board the train at said crossing, and to alight therefrom.” It alleged tbat persons intending to board tbe train “usually grasp tbe handrail on tbe passenger cQach, and walk along with tbe train while in slow motion, and board tbe car at tbe moment of stopping, or take tbe handrail at tbe moment of stopping and board tbe train as it starts off; . . . tbat tbe stopping of tbe train is so brief tbat it does not permit intending passengers to wait until tbe train stops and then board it before it. is again in motion.” Tbe declaration further alleged tbat on tbe morning of tbe'accident tbe plaintiff went to tbe crossing, intending to take passage on tbe defendant’s train; tbat tbe train slowed down to about two miles an hour, and tbat appellant caught tbe handrail of tbe coach, intending to board tbe same, while bolding tbe handrail and walking along with tbe train, intending at tbe moment of its stopping to ascend tbe steps of tbe coach and thus board tbe train; tbat while holding tbe handrail tbe train was suddenly and without warning jerked forward, and plaintiff thrown to tbe ground, receiving the injuries of which be complains. It alleged tbat tbe plaintiff acted carefully and prudently, and could have boarded tbe train bad it not been for tbe sudden and unlooked-for jerk, which wrenched bis bands from tbe handrail. It alleged willful, malicious and grossly negligent conduct on the part of tbe engineer in charge of tbe train, but did not allege tbat when this jerking complained of happened tbe engineer in charge of tbe train or any other operative of tbe train knew tbat tbe plaintiff was walking by tbe train bolding tbe handrail, or preparing to board tbe train.
    
      A. J. Rose, for appellant.
    Tbe statement in tbe declaration as to tbe stopping or slowing of tbe train at the crossing required by tbe city ordinances, is merely preliminary, though necessary, to tbe statement of tbe cause of action, and that statement is: (1) “The daily constant practice and custom of persons intending to take passage on said railway ... to board said train at said crossing.” (2) That this custom and practice of boarding and alighting from said train has been “permitted by defendant, which has, without objection, permitted, allowed, encouraged, and invited intending passengers to board said train at said crossing and to alight therefrom.” (3) That the defendant accepts and receives all persons at said crossing as passengers. (4) The care of plaintiff in his conduct, and that the sudden jerking of the train was “willful, malicious, and grossly negligent.”
    Various definitions are given in the decisions and reports and ■in all of them good faith on the part of the intending passenger coupled with placing himself, at a proper time, and in a proper place, in a position to take passage, with the express or implied consent of the railroad, appear to be the requisites, and the only ones, to create the relation of carrier and passenger. Baldwin’s American Railroad Law, p. 300, ch. 32; 5 Am. & Eng. Ency. Law (2d ed.), 491, and notes; 6 Cyc., 536; Chicago & E. I. B. Co. v. Johnson (111), 54 L. R. A.,-830, quoting and approving the text in 5 Am. & Eng. Ency. Law (2d ed.), 488; Phillips v. Southern By. Co., 124 N. C'., 123; 45 L. R. A., 164; Western, etc., B. B. Co. v. Toils (G-a.), 35 L. R. A., 655: Notes to Webster v. Fitchburg B. Co. (Mass.), 24 L.. R. A., 521.
    We have undertaken to show by these authorities that it was not necessary for the plaintiff in this case to have purchased a ticket, or to have actually got aboard the train in order to become a passenger, provided he presented himself for passage in a proper condition, in proper manner, at a proper place to be carried. That he presented himself in a proper condition is not questioned. Does the declaration show a presentation in a proper place ?
    The declaration alleges the place to have been one where the law required trains to stop, but this failure to stop is not the gravamen of the action. Plaintiff does not allege he placed himself at the crossing because the law required trains to' stop there, lie states the train did not stop in obedience to the law, or merely slow down, in disobedience to law, but in either event enabling passengers to get on in safety, and then the allegation is, first, “the daily constant practice and custom” of persons to take passage at the crossing, and second, “that this practice and custom . has been permitted, allowed, encouraged, and invited any intending passengers to board said train at said crossing and to alight therefrom.
    Having presented himself at a place where it was the daily constant practice and custom to board the train, and also, this place being one where the defendant “permitted, allowed, encouraged, and invited any intending passengers to board said train,” we submit that the declaration shows plaintiff was a passenger under all the well-recognized rules and definitions of the decisions and text writers.
    The learned judge below was largely influenced by the case of Creech v. Charleston & N. W. By. Co. (S. 0.), 45 S. E. Rep., 86; 31 Am. & Eng. Ency. Law (2d ed.), 903. In that case the action was for injuries in attempting to board a train, the declaration alleging failure to bring it to a full stop at a railroad crossing, the sudden increase of speed just before reaching the crossing, and that the regulation of the company required it to stop at the crossing. The declaration in that case alleged that the company was accustomed to receive and carry passengers who might board the train at the crossing, but did not allege any custom of the company to stop at the crossing for the purpose of receiving passengers “so as to warrant pláintiff in believing that he would be allowed to board the train as a passenger at that point.” “There was no allegation of any custom of defendant to receive as passengers at that point those who might board its moving trains.” The supreme court in that case sustained a demurrer to the declaration and expressly placed its decision on the ground that while there was an allegation that the defendant company “was accustomed to receive and carry passengers” who might board the train at the crossing, yet there was no allegation that the company stopped at the crossing for the purpose of receiving passengers “so as to warrant the plaintiff in believing that he would be allowed to board the train as a passenger at that point.”
    The opinion clearly shows that if the declaration had contained an allegation of such custom to stop “for the purpose of receiving passengers so as to warrant plaintiff in believing that he would be allowed to board the train as a passenger at that point,” it would have been good as against the demurrer. This is made clear by the reasoning of the court, for the opinion shows that in the trial court the circuit judge construed the declaration to mean that the defendant’s train was accustomed to stop at the crossing to receive passengers, and for this reason overruled the demurrer. The supreme court reversed this ruling and held that the declaration did not so allege, such custom, and on this ground, and this alone, sustained the demurrer.
    In the Greech case there was no allegation of a custom to stop at the crossing for the purpose of receiving passengers “so as to warrant the plaintiff in believing that he would be allowed to board the train as a passenger at that point.” The present declaration alleges more than a custom; it alleges an invitation. The only effect of a custom would be to create an implied invitation, and here we have the allegation of the invitation itself. Under the rule announced in the Greech case something must be done by the railroad to warrant an intending passenger in believing he would be allowed to board a train at a place other than a regular depot or passenger station, otherwise there would be no breach of duty to him, but an allegation that the company invited intending passengers to board a train at a particular point is sufficient, for this is all that is done by the railroad toward the public in 'reference to its regular passenger depots and stations.. By its advertisements and publication of its schedule, passengers are invited to enter its trains at its designated stations, and he who presents himself there, in proper condition, and at a proper time, for passage, becomes a passenger; the relation of carrier and passenger is thus created.
    Now, the railroad company, so far as the passenger is concerned, has the right to extend this invitation so as to warrant one in believing that he will be accepted as a passenger at a place other than its regularly scheduled passenger depots. And if the invitation is extended to intending passengers to board the train at a crossing where the law requires a stop, so as to warrant the belief that the train will be stopped then we say that liability cannot be evaded by asserting that the stopping place was not one required by law, and failure to stop constituted no breach for which the passenger can complain. If we had alleged such a custom to stop and take on passengers at a crossing as -would warrant one in believing that he would be received as a passenger at the crossing, the gist of it would be that the company, by its conduct and custom, had created in the mind of the intending passenger a belief on which he had the right to rely. An allegation of the invitation itself creates the same warrant for belief. Custom in such case merely implies the invitation.
    But the doctrine of the Creech case is opposed to that of Dewire v. Boston & Maine B. B. (Mass.), reported in 2 L. R. A., 166. In this case the plaintiff boarded the train, not at a regular passenger station of the defendant, but at a point five hundred feet from where the defendant’s road crossed that of another road, where defendant was obliged by law to stop its trains. The injury happened after plaintiff had reached in safety the inside of a passenger car. The defense was that plaintiff had no right • to take the train at this crossing, and was therefore not a passenger when he was injured, but the court held he “was not a passenger in taking the train, and when he had reached in safety the inside of a passenger car, then certainly, if not before, he became a passenger.” This ease indicates that the relation was established when he boarded the car, for if the crossing was a place at which he could not lawfully enter, then the relation of carrier and passenger was not created and his safe entry into the car would have related back to the time of boarding. In other words, if he was not a passenger when he first boarded the car at the crossing, he did not become one when he had reached in safety the inside of the car. The relation must have been created at the time he sought entry as a passenger. This view is upheld by the doctrine of Railroad Go. v. Robinson, 68 Miss., 643 (s.c., 10 South. Rep., 60), where the plaintiff unlawfully ■flagged a train on a dark and rainy night at a point on the road at which the servants of the company -had no reason to expect a passenger. The plaintiff paid his fare after he reached the inside of the coach, but that fact “throws no light upon the past occurrence from which the injury resulted. Ibid.
    
    So, if the doctrine of Railroad v. Robinson is a correct view of the law, then it is clear that the decision in Dewire v. Boston, etc., R. Go., is that though no invitation be held out to take passengers at a crossing where the train is obliged by law to stop, yet if the'railroad permitted passengers to take trains at such point, then it is a question for the jury to determine whether or not the plaintiff, in taking the train, intended to become a passenger.
    In this case of Dewire, liability was placed on the ground that “defendant permitted passengers to take trains at this place (the crossing), and that plaintiff, in taking the train, intended to become a passenger.
    The general rule that to board a moving train is negligence, which will bar an action for resulting damages, is wise, but it has its exceptions. And when it is a passenger who attempts to get on a slowly moving train, the instances are rare when the court should take the case from the jury. Wooten v. Railroad Go., 19 Miss., 26 (s.c., 29 South Rep., 61) ; Baldwin’s Am. R. R. Law, 313; Carr v. Eel. B. B. & E. B. Co. (Cal), 21 L. R. A., 365; Alabama Midand B. Co. v. Horn (Ala.), 31 South. Rep., 481; Toler v. Y. & M. V. B. B. Co., 31 South. Re-p., 788; Kelly v. Vicksburg, etc., B. Co. (La.), 388.
    The declaration alleges two methods open to a passenger to board the train at the crossing, and only two, but whichever method was adopted the passenger could only board the train while in motion. It is alleged that he could board the train by grasping the rails, walking with the train, and board it at the moment of stopping; or, he could wait until the train came to a stop, then take the rail, and board it as it moved off. The allegation is that the stop was so brief that the passenger could not board and enter the train while it was at a standstill, but whether he pursued the one or the other of the two methods of entering, he must board the train while moving.
    In view of the allegations of the declaration as to how the train must be boarded, and that it could not be boarded at the crossing except when it was in motion, the passenger who is invited there, and no other way presented to him, is not guilty of contributory negligence in accepting the invitation and seeking to board the train, when moving, if it cannot be boarded in any other way, and the way so presented is not obviously a dangerous one to an ordinary, prudent, and careful man. But whether or not such attempt was one that a prudent and careful man would make is a question for the jury. Mississippi, etc., B. B. Co. v. Mason, 51 Miss., 234; Central, etc., B. B. Co. v. Miles (Ala.), South. Rep., 696; Mils v. Missouri, etc., B. Co., 55 L. R. A., 497-503; Bailway Co. v. Clay, 19 South. Rep., 309; Watkins v. Birmingham,, etc., Co., 24 South. Rep., 394; Louisville, etc., B. B. -Co. v. Thompson, 64 Miss., 594; Vicksburg, etc., B. B. Co. v. McCoivan, 62 Miss., 694 (s.c., 1 South. Rep., 840) ; Hopson v. Kansas City, etc., B. B. Co., 87 Miss., 789 (s.o., 40 South. Rep., 873).
    It was urged below that .the plaintiff was negligent and that his own negligence was the proximate cause of the injury, the argument being that he was injured in attempting to board a moving train, and that this, and not the sudden jerking of the train, caused the injury, or wTas the proximate cause of it. We think that this contention is disposed of by the declaration itself and by many of the authorities heretofore cited, but it was insisted on with earnestness by counsel below.
    The declaration alleges: “That plaintiff, in presenting himself for passage at said crossing, and in taking hold of said handrail, acted carefully and circumspectly, and as a prudent, careful man, and could have safely boarded said train, even though it had not come to a full stop, had it not been for the sudden, unlooked-for, and violent jerking forward of said train of cars, which wrenched his hands from their hold and threw him to the ground.”
    This is a statement of fact, not a mere conclusion, and is admitted to be true by the demurrer. It shows that the injury was not caused by any negligence of plaintiff, but by an act of the defendant alleged to be willful, malicious, and grossly negligent.
    To. prevent a recovery, plaintiff’s negligence must proximately contribute to the injury. If the sole immediate cause of the injury was defendant’s negligence, the plaintiff can recover, notwithstanding previous negligence of his own. Miss. Cent. B. B. Go. v. Mason, 51 Miss., 244; Illinois, etc., B. B. Go. v. Bethea, 88 Miss., 119 (s.o., 40 South. Rep., 813) ; Montgomery, etc., B. B. Go. v. Stewart (Ala.), 8 South Rep., 110.
    
      Gatchings & Gatchings, for appellees.
    This ease is not to be determined by the rules defining under what circumstances it will be negligence to attempt to board a moving train.
    By appellant’s own statement the time had not arrived when he was to board the train, either while it was standing or while it was moving. The train was not come to a stop.
    The custom which he describes, and with which he alleges the railway company was familiar, did not contemplate a boarding of the train until after it had come to a stop. The custom, according to appellant’s description of it, was that persons should only board the cars after1 they had come to the momentary stop described. It is true the declaration alleges that the stop at the crossing is too brief to permit passengers to wait until the train stops and then to board it before it is again in motion. But the custom was that the effort to board the train should not begin until the train had stopped. There is no allegation that the company invited those intending to board trains at this crossing to grasp the handrail while the train was in motion, and to walk along with it until it came to the momentary stop.
    According to the appellant’s own showing he might have boarded the train just as well by walking along by the side of it until it came to a stop without grasping the handrail.
    It does not appear from any allegation that it was at all essential that one intending to board the train should seize the handrail and walk along with the train until it stopped. To do that necessarily involved more or less danger.'
    ■ This court will take judicial notice of the fact that in stopping and starting trains there is always and necessarily more or less jerking of the coaches. This jerking seemed to have been a little more than usual in this particular case, and thereby appellant was thrown down and injured.
    If he had not seized the handrail while the train was in motion he could have kept" pace with it just as well, and could have boarded the train by grasping the handrail after it had come to a stop. He deliberately assumed the risk of injury from the jerking of the train by unnecessarily grasping the handrail while the train was in motion.
    
      It seems to us that there could be no clearer case of contributory negligence. If the train had come to a stop and the appellant had endeavored to board it as it was moving off, then the question as to whether in doing so he was guilty of contributory negligence would doubtless ■ have been one which should have been submitted to a jury, provided the relation of passenger had commenced. Wooten v. Mobile, etc., R. R. Co., 79 Miss., 26 (s.c., 29 South. Rep., 61); A. & V. R’y. Co. v. Jones, 86 Miss., 263 (s.c., 38 South. Rep., 515).
    The doctrine discussed in these cases, however, as already pointed out, does not apply here, for the reason that the appellant was not attempting to board a moving train. Even if the custom described by the appellant in his declaration existed as fully as described, he is not thereby helped. The custom, as he describes it, does not put the railway company in the attitude of inviting and encouraging persons who take its trains at this crossing to seize the handrails of its coaches and walk along by them before the trains come to a stop. Certainly the appellant did not occupy the relation of a passenger when he was injured.
    We invite the attention of the court to the case of Webster v. Fitchburg Railroad Co., 37 N. E., 165, decided by the supreme court of Massachusetts.
    It cannot be possible that the law will imply an acceptance by the railway company of the appellant as a passenger before its train had stopped and while he was holding on to the handrail of one of its moving coaches, and so in a position of danger to himself, as was shown by the result in this identical case. He had not yet presented himself at a proper place and in a proper manner. Bcheper v. Union, etc. R. R. Co., 29 S. W., 713.
    That one does not become a passenger until he had put- himself in charge of the carrier and been received by him as such, either expressly or impliedly, was also declared by the supreme court of Illinois in the case of Illinois, ele., B. R. Co. v. O'Keefe, 48 N. E., 294. To the same effect is the ease of ¡Briclcer v. Galdwell, 18 Ail., 983.
    There are cases, of course, in which, the relation of passenger begins before any attempt is made to enter a train. In such cases the law from the particular circumstances implies that a person has offered to become a passenger, and that his offer has been accepted by the company, and in that Avay that the contract which must exist in order to constitute a passenger has been impliedly entered into. L. N. A. & G. Railroad Go. Ar. Treadway (Ind.), 40 N. E., 80Y.
    In Smith v. St. Paul, etc., R. R. Go., 18 N. W., 821, the supreme court of Minnesota held that where one intended to board a street ear had hailed the car, and it had stopped to enable him to take passage, and he was in the act of carefully and prudently attempting to step on the platform, lxe was to be regarded as a passenger. This ruling Avas unquestionably correct, inasmuch as all the circumstances indicated that the street railway company had accepted the person attempting to enter it as a passenger.
    In the case of Rogers v. Kennebec Steamboat Co., 29 Atl., 1069, it was held that the plaintiff in that case, Avh'o was attempting to get on a steamboat by passing over a gang plank which had been laid by the officers of the steamboat to enable passengers to enter it, and Avho Avas injured by the dropping* of the plank, had become a passenger. The court said that at the moment of the injury the plaintiff Avas Avithin the protection of the servants of the steamboat company. There can be no question that the ruling in this case by the supreme court of Maine was correct. See, also, the case of Brien v. Burnell, 8 Car. & P., 124, Avhich is one of the earliest cases to the same effect.
    None of these cases, however, is similar to the one before this court here, for the train had not stopped, and the appellant. was injured because lie was doing something which was necessarily accompanied by more or less danger, and which, according to his own allegation, was not necessary to be done by him to enable him to board the train.
    By his own allegations he might as well have walked along by the moving train without seizing the handrail until it stopped, and then have boarded the train by the assistance of the handrail.
    It was certainly unnecessary that he should have grasped the handrail and held on to it while the train was in motion. The rule is universal that where trains stop for the purpose of taking on passengers, or for the purpose of letting passengers off, reasonable facilities and suitable opportunity must be furnished for that purpose.
    The momentary stop made by the company’s trains at this crossing was not a compliance with this universal requirement. The company made no such provision, for the reason that this crossing was not a place provided by it at which to receive passengers or to discharge them. The declaration does not so claim. On the contrary, it alleges that the momentary' stop made by the company’s trains at this crossing was made solely for the purpose of complying with the ordinances of the city of Greenville. Hence there is no claim that he was injured because the company did not give him a reasonable opportunity to board the train, and there is no claim that he was injured because the company did not stop its train on this occasion at all.
    It is very evident from the allegations of the declaration that the company did not intend that persons should get on its trains or off of them at this crossing, and that all that it did was to carry as passengers sugIi persons as might succeed in getting on •its trains at this place.
    Inasmuch as all of the facts are fully set out it is evident that the allegations of the declaration that the company invited and encouraged persons to g’et on its trains at this crossing state merely a conclusion of law, attempted to be deduced from the naked fact that the company carried as passengers those who, availing themselves of this momentary stop, were- in the habit of boarding the trains.
   Calhoon, J.,

delivered the opinion of the court.

The place of the accident was in no sense a, depot or flag station. If, notwithstanding that, the appellant had been seen by the engineer holding to the handrail of the moving train, although he had caught hold of it while it was moving, we would have a different case to decide. But there is no averment in the declaration that he was so seen by any operative of the train.

Affirmed.  