
    CARRIERS — RAILWAYS.
    [Cuyahoga (8th) Circuit Court,
    May 27, 1907.]
    Marvin, Winch and Henry, JJ.
    (Winch, J., not sitting.)
    *Lake Shore & M. S. Ry. v. Selig Dallet.
    Railway not Liable for Injury to one Alighting From Train After Escorting Passenger on Board.
    Where one who Las gone aboard a train to assist another is injured in alighting from the train after it is in motion, the railroad company is not liable, if it had not misled him by any false appearance of safety and had not put him under any compulsion in respect to leaving the train.
    Error.
    
      Foran, Pearson & Powell, for plaintiff in error.
    
      Neff & McTigue, for defendant in error.
   HENRY, J,

The sole question in this case is whether one who sustains; injuries under the following circumstances, can recover damages therefor from a railroad company.

Dallet, an elderly but vigorous man, assisted his niece to-board and find a seat in a Pullman ear in the evening. The-train stopped at that point three minutes. The station was well lighted. Just before the train started Dallet told the Pullman, conductor that he expected to get off. The conductor thereupon told him that the train was about to start; Dallet then followed the conductor to the door.

The door of the car and the vestibule doors over the steps; were opened either by the conductor or the porter, or both. Dallet went down the car steps and got off before the train had gotten away from the station, although it had been in motion from the time he parted company in the ear with his niece. Dallet, however, did not realize it was in motion, but the electric-lights and the supporting posts of the train shed were directly before his eyes as he left the car, so that, before he stepped off,, he could not fail to have known that the train was moving: There was no conversation between D!allet and the trainmen on the platform, but the jury found that their conduct in opening the doors gave Dallet confidence that he could alight from the train safely. This, the jury found specially.

Apparently Dallet stepped off with his back or side to the engine and in such a way that he fell and broke both ankles.

Upon the question of contributory negligence we are not prepared to disturb the jury’s verdict.

The question of the company’s negligence in prematurely starting the train is by a special charge of the court below to the jury, eliminated from the ease presented to us by the record.

In support of ,the judgment reliance is placed upon the case of Pittsburg, C. & St. L. Ry. v. Krause, 30 Ohio St. 221, which is also a case of injuries sustained in getting off a moving train by one who, though not a passenger thereon, was in the position of a licensee or person invited upon the train. It was held in that ease that if the conductor ordered or directed the plaintiff to get off the train while it was in motion and thereby induced him, without contributory negligence to do an unsafe thing, the railroad company would be responsible for such injury as resulted therefrom. So, in the case before us, the inquiry is whether or not the conduct of the trainmen amounted to a. requirement, command or direction that Dallet leave the train.

Some jurisdictions repudiate the doctrine of Pittsburg C. & St. L. Ry. v. Krause, supra, but inasmuch as we feel bound by this decision, we have confined our scrutiny of the case, cited by counsel, and others that we have found for ourselves, to those that have been decided in jurisdictions where the same doctrine is recognized.

It is impossible to review all the cases cited and examined, but among them we find two from Iowa, which have seemed to us to be peculiarly applicable, namely: Vimont v. Railway, 71 Ia. 58 [32 N. W. Rep. 100], and Galloway v. Railway, 87 Ia. 458 [54 N. W. Rep. 447].

In the latter case the plaintiff went on the defendant’s vestibuled train to assist his wife and child, who were about to take passage thereon in the night time; when he went to get off the door was fastened and the brakeman told him he conld not get off, that it would break his neck. Whereupon the plaintiff stated that he would pay his fare to the next station; the brakeman then opened the door and, after looking back, told plaintiff he could step down on. the lower step and jump far enough so that the train would not hit him, and that he would be alright. The plaintiff asked the brakeman to pull the bell, and he answered that either he could not or would not, and said to the plaintiff — "get off” and closed the door and left him in the dark; he coud not tell whether the train had more than left the depot and it seeming not to be going fast, he jumped and was injured. This was held sufficient to support a verdict for the plaintiff.

In Vimont v. Railway, supra, the brakeman told the plaintiff to get off quickly if he was going to, and the court held mat this did not amount to a requirement or order to jump from a moving train, and the plaintiff, therefore, could not recover'.

The .case before us certainly involves no more compulsion than was involved in the Yimont case, and we think that although the circumstances were such as to impose upon the railroad company the exercise of ordinary care for Dallet's safety, it was under no obligation to do anything more in this behalf, than to see to it that he was not misled by any false appearance of safety, and that he was not put under any compulsion by it in respect to leaving the train. The circumstances were such as already shown, that Dallet must have seen that the train was moving. There was absolutely no other danger present. The platform'where he alighted was clear, unobstructed and sufficiently lighted.

Unless, therefore, the conduct of the trainmen was of a nature to induce him to believe* that he was under some compulsion to leave the moving train, the risk of accident from his so doing was upon him and not upon the company.

Marvin, J., concurs. 
      Affirmed, no op., Dallet v. Railway, 80 O. S. 735.
     