
    The Pittsburgh, Cincinnati and St. Louis Railway Company v. Christian Krouse.
    The plaintiff took a seat in a railroad car, to be carried to the next station on defendant’s road, but not having the usual fare for that point, twenty-five cents, handed the conductor a five dollar bill, out of which to take the fare. Being unable to change the bill or to get it changed on the train, he promised plaintiff to get it changed when they arrived at the next station, and to return the balance, after deducting the fare, to whicl} plaintiff assented. On arriving there, the plaintiff being at the end of his journey, left the train, but waited on the platform while the train remained, some twenty or thirty minutes, expecting the conductor to return him his money, but did not demand it, because he thought the conductor was busy, but seeing the train starting, and the conductor, who had forgotten or neglected his promise, get aboard as it moved away, he ran some distance beyond the platform and climbed upon the car as it was moving off' with increasing speed, for the sole purpose of getting his money. The conductor, on demand for his change, handed him back the same bill, and, as plaintiff claims, told him to get off the train as quick as possible, and immediately he jumped from the train, voluntarily and without compulsion, while it was running at the rate of four or five miles per hour, and at a place not intended for passengers to alight. It did not appear that the remark of the conductor caused, plaintiff to act differently from what he otherwise would have done, nor that he requested that the train be stopped or slacked up to enable ■ him to get off in safety, Held:
    
    I. That when the plaintiff got upon the train after it had moved away from the station, for the exclusive purpose of getting from the conductor the money due him, and when he jumped off at a point beyond, not suitable for, nor intended for pas'sengers to alight, the relation of passenger and carrier did not subsist between him and the railroad company.
    
      2. That at the time he jumped from the train and was injured, the duties and obligations of the company toward the plaintiff were such as existed in his favor, as one of the general public, growing out of the failure of the conductor to return him his money.
    3. The failure of the conductor to return him his money before leaving tlie station, did not exempt him from the exercise of proper care and prudence in attempting to get on and off the train while in motion, and acting under no compulsion.
    4. Under the circumstances of this case, it was a question of fact for the jury, under proper instructions, to determine whether this defendant was guilty of negligence, and also whether plaintiff was guilty of such contributory negligence as would prevent a recovery for an injury caused by jumping off the train, under the circumstances and in the manner he did.
    5. The evidence tending to show that at the time the conductor handed plaintiff the bill, he told him to get off the train as quick as possible, • without attempting to stop the train for that purpose, and that the plaintiff in jumping off, acted voluntarily and without compulsion, was competent to be considered by the jury, as affecting the question of the plaintiff’s contributory negligence, as well as defendant’s negligence in the premises.
    6. It was the province of the jury to determine both the nature and effect of this remark of the conductor; whether it was intended and understood as an order to leave the train, or was by way of advice in furtherance of plaintiff’s intention, and also whether snch remark affected the action of the plaintiff, and caused him to act differently from what he otherwise would have done.
    
      1. It was error for the court to charge the jury that if the conductor ordered or directed the plaintiff-to' get off the train, or told him to get off as quick as he could, while the same was moving, without stopping it or slacking its speed, then the defendant would be liable for injuries resulting from jumping off, provided in so jumping he exercised due care and prudence '• 1st. Because such charge assumed as a matter of law for the court and not of fact for the jury, that such an order, or direction, or-remark, caused the plaintiff to leap from the train when in motion; 2d. Because it took from the jury not only the question of liability of the defendant, but also the question of contributing negligence of the plaintiff as to the act of jumping off, and, as matter of law, made the company liable for all the consequences, however hazardous and imprudent the act may have been, although he may have acted voluntarily, if the mode and manner of jumping was prudent.
    8. If the conductor ordered or directed the plaintiff to got off the train while it was in motion, at a place where it was not prudent to make the attempt, such order or direction, without compulsion, did not warrant the plaintff to do a hazardous or imprudent act, and impute the consequences to the company. Whether the act was an imprudent one, amounting to contributory negligence, was for the jury to determine, in view of all tbe circumstances of the case, tbe remark of tbe conductor and its effect on tbe mind of the plaintiff included.
    9. Where the court in its general charge to the jury correctly states the general principles applicable to cases of the kind on trial, but follows it by an erroneous specific instruction on a controlling point, as to tbe legal effect of tbe case made by tbe evidence before tbe jui-j', which if followed, misleads the jury, such erroneous specific charge is not eured by the general charge.
    Error reserved in tbe District Court of Coshocton county.
    Krouse brought his suit on March 23, 1871, in the Court of Common Pleas of Coshocton county, Ohio, seeking to recover $5,000 damages for injuries received by him in leaving the caboose car of a freight train of the plaintiff in error, at the town of Coshocton, on November 7, 1870. At the February term, 1872, the case was tried to a jury, resulting in a verdict for Krouse of $3,000. Second trial was had at the April term of the common pleas, 1872, and resulted in a verdict for the plaiutiff of $3,300. A motion for a new trial was made by defendant and overruled, and a bill of exceptions, setting out error complained of, and also all the evidence in the ease, was allowed and made part of the record. The case was taken to the District Court of Coshocton county, on error, and by that court, at its July term, 1873, reserved in the supreme court for decision.
    The plaintiff in error was operating a railroad running through Coshocton county. On the 7th of November, 1870, Krouse, the plaintiff' below, desiring to go from Franklin Station or Coal Port, a station on the railroad to Coshocton, a distance of about four miles, got on a local freight train, and took a seat in the caboose car, attached, which carried such passengers as chose to travel on such a train.
    The following is a summary of the facts :
    The caboose had a door at each side, and also a platform and door at each end. A step went down from each end of each platform. This step was about two and one-half feet above the level of the track. Seats were arranged! around the sides. After said train left Coal Port, the conductor asked Krouse for his fare to Coshocton. Krousedid not have twenty-five cents in change, and offered the-conductor a five dollar bill. Th'e conductor was unable to change the bill, and asked some other passengers in the ear to change it, but was unable to get it changed. Whereupon he retained the five dollars, and told Krouse he would get it changed when they got to Coshocton and give him. his change, to which arrangement Krouse consented.. When the train arrived at Coshocton, Krouse and the-other passengers, their journey being ended, discharged themselves from the train. The conductor then proceeded, with his duties concerning the train, such as receiving and discharging freight, switching cars, etc., wholly forgetting-about the change that was due to Krouse. Krouse in the meantime went upon the freight platform, and waited about the place for twenty minutes to half an houi, in order that the conductor should give him his change, but did not ask the conductor for his change, because he-thought the conductor was too busy. At the station at Coshocton, Main street crossed the track at right angles. The freight platform was on one side of the street, and the passenger or eating-house platform was on the-other side — the street about sixty feet wide. The business, of the train at that station being finished, the conductor gave the signal to start the train, and it commenced moving eastward on its way (in fact going north at the time). Krouse seeing the train start, ran down off the high freight-platform, and across the street and on to the eating-house-platform, in the direction the train was going, to get on the train, for the purpose of getting his change; and while-the car was in motion he clambered up on the front platform of the caboose, and went to the door and partially in the door of the caboose, for the exclusive purpose of getting his change from the conductor. The train had got up. to a speed of four or five miles an hour. The conductor ;gave Krouse the same five dollar bill, and Krouse thereupon jumped from the train, and in striking the ground fractured the tibia' aud fibula of one of his legs. Krouse, at the •time, was a man fifty-five years of age, of sound mind, and in the full possession of his mental faculties. Krouse was not forced to leave the train. No force or show of force was used, and no threats of expulsion were made, and no ■effort to expel was made. The next stopping place was ■Coshocton Mines, about one mile and one-half east. Krouse did not ask the conductor to stop the train.
    The above facts are not controverted by the evidence, but a conflict occurs in the evidence as to whether the -conductor ordered Krouse to get off Krouse says, that “ he got on the car as it was leaving Coshocton, and said to’the conductor, ‘Mr., you didn’t give my change back.’ He said, ‘No, sir; I didn’t get it changed.” He then put his hand in his vest pocket, took the five dollar bill and handed it back to me, and told me to pay the quarter some other time, and to get off the train as quick as I could. I .am sure that is what he said. I did n’t know of his taking hold of me, or touching me, nor pushed me. I went on the platform of the car. No one else came on it. I was .alone. The conductor said nothing more. Eelt no compulsion. I got down on the step. Put the five dollar bill in my pocket, -while I was on the platform. Then I took hold of the iron rail, went down on the step, looked over, ■saw the ties sticking over the rails, aud was afraid to jump there. Then I looked ahead and saw a better place, where ties did not stick out; come to that place, I jumped forward with the train, as carefully as I could, and let go the iron just as I jumped; andjust as I struck the ground with my foot something struck me on the shoulder. ... I never jumped off a car when in motion before. . . . When I was on step of car it was still increasing in speed. My- object in jumping off was to keep from being taken to Lafayette, and besides I thought I had to obey the eon•duetor’s orders. He did n’t threaten to put me off. . ,. . I did n’t tell him I did n’t like to jump. I did n’t hesitate .about jumping.”
    The conductor swears, that after they did .the work ■of the train it was started; that he (conductor) got upon the train, after it had started, at Main street crossing. That he met Krouse in caboose, near the door. Krouse ■demanded his five dollars, which was given him. Krouse then passed him out of the. door on to the platform, and got off at east end of caboose. . . . Train was then going four or five miles an hour. ... I was so busy I forgot to give him his change. I don’t remember of saying anything to Krouse when I gave him his money. . . . That he did nothing to induce Krouse to leave the train, ■except give him his money. That he used no compulsion at all. That he (conductor) was not on the platform when Krouse got off. . . . That he don’t think he spoke to Krouse when he gave him the money.
    Several errors were assigned to obtain a reversal of the judgment.
    Such only as are deemed necessary to notice, are found .stated in the opinion of the court.
    
      S. M. Hunter, and Spangler & Pomerene, for plaintiff in error:
    I. Krouse, at the time he leaped from the car, was not .a passenger, and consequently he could not exact from the railroad company that high degree of care which the law imposes upon a common carrier of passengers. S. & R. on Neg. sec. 262; Pierce’s Am. R. R. L. 264; 8 Barb, 378; Imhoof v. Railroad, 20 Wis. 344.
    IL As to contributory negligence, see Timmons v. Railroad, 6 Ohio St. 106 ; Railroad v. Barber, 5 Ohio St. 541; S. & R. on Neg., sec. 34 ; Railroad v. Asbell, 23 Penn. St. 149; Railroad v. Hendricks, 26 Ind. 232; Davis v. Railroad, 18 Wis. 181; Siner v. Railroad, 3 L. R. Exch. 150 ; Lucas v. Railroad, 6 Gray, 64; Gassett v. Railroad, 11 Gray, 506, .507; Railroad v. Able, 59 111. 131; Fleytus v. Railroad, 17 Da. 340; Lesseps v. Railroad, 18 Da. 36 ; Darmont v. Rail
      
      road, 9 La. Ann. 44; Railroad v. Hazzard, 26 111. 380; Railroad v. Swift, 26 Incl. 473; Kline v. Railroad, 37 Cal. 404 y Ginnon v. Railroad, 3 Robertson, 25.
    
      Nicholas & James, for defendant in error:
    Plaintiff below was a passenger, Sher. & Red. on Neg. 304, see. 262; Brien v. Bennett, 8 Car. & Payne, 724; Gordon v. Railroad, 40 Barb. 546 ; Warren v. Railroad, 8 Allen,. 227; Gaynor v. Railroad, 100 Mass. 212.
    Being a passenger the defendant owed him the greatest degree of diligence and care, and were bound to exercise-such care toward him. Railroad v. Stevens, 18 Ohio St. 265; Nicholson v. Railroad, 41 N. Y. 540; Edwards v Lord,. 49 Me. 279; 79 Mass. 361; Sher. & Red. on Neg. secs.. 266,. 275, 276; Filler v. Railroad, 49 N. Y. 47; 24 Wis. 578;. Filler v. James, 59 N. Y. 351; Lambeth v. Railroad, 66 N.. C. 494; Sweeney v. Railroad, 10 Allen, 368; Mclntire v. Railroad, 37 N. Y. 288.
    As to contributory negligence, 49 N. Y. 47 ; 32 Penn. St.. 292; 24 Wis. 578 ; Sher. & Red. on Neg. 335, 566; Kerwhacher v. Railroad, 3 Ohio St. 189 ; 39 N. Y. 227; Burrows v. Railroad, 63 N. Y. 556 ; Morrison v. Railway, 56' N. Y. 307; Lovitt v. Roilroad, 9 Allen, 557; Neiosom v. Railroad, 29 N. Y. 383; 8 Allen, 227; Railroad v. Shires,. 18 Ohio St. 255.
   Johnson, J.

We think the Court erred in its charges to the jury as to the relative duties and obligations of the-plaintiff" and defendant toward each other at the time the injury was caused.

. The question of contributory negligence by the plaintiff' was presented; that is, whether he had so directly contributed to his own injury, as to bar a recovery, and the effect of the charges we shall notice, was, practically, to take from the jury its determination.

We will notice those charges given and refused which relate to this point.

1. The court charged; “The plaintiff claims that he-went on the defendant’s cars at Coshocton to get his change. This he had a right to do, and if the conductor neglected to stop the train, or so far check its motion as to afford the plaintiff an opportunity of getting off with safety, he, the plaintiff, would have a right to remain on the train. Dut if the conductor in charge of the train ordered or directed him to jump off as quick as he could, and the conductor neither stopped the train, cheeked its speed, ndr attempted to stop or check it, and the plaintiff, in pursuance ¡and in obedience of such order, jumped off while the train was moving at the rate of four miles an hour, and was injured, the defendant would be liable ; provided you find that the plaintiff, in jumping off the train, exercised ordinary care and prudence to avoid injury.” To which charge defendants excepted.

2. Also the following : “ That if the jury shall find that .•at the time the plaintiff received the injury complained of in the petition, that the defendant was a railrpad company, ■engaged in carrying freight and passengers on their railway from Newark to Steubenville, in the State of Ohio, and were running trains called local freight trains between 'Newark and Dennison, in the State of Ohio, which trains were used for carrying freight and passengers, and that the plaintiff, with the consent of the conductor of one of said trains, got on board of said train at Coal Port or Franklin station, to be carried on said train from said station to Cosh■octon, for a reward to be paid by said plaintiff to said company, then said plaintiff was a passenger, and entitled to all the rights of passengers on railway trains; and if the jury ¡shall further find that, after said plaintiff had so got on said train, and said train had started eastwardly on its way to Coshocton, the said conductor called upon said plaintiff, and demanded his fare, and informed plaintiff that the amount ■of said fare was twenty-five cents, and that plaintiff had only ten cents in change, but also had a,five dollar bill, and informed said conductor that he only had ten cents in change, and had a five dollar bill, and offered the ten cents to the conductor, and promised to pay the balance when he arrived at Coshocton ; and that said conductor refused to take the ten cents, but informed plaintiff' he would take said five dollar bill, and pay the plaintiff' his change when the train arrived at Coshocton, and took and kept the five-dollar bill; and if the jury shall further find that said'conductor retained said money, and the train arrived at Coshocton, and the plaintiff' got off' the train and waited at the-station for his change, and that said conductor failed and neglected to give plaintiff' his change, but started said train, in motion .on its eastward journey from the town of Coshocton, without giving the plaintiff' his change, that then the plaintiff' bad a right to go on board of said train and demand said change; and if they further find that plaintiff" did go on board of said train, while the same was in motion, for the purpose of so demanding said change, and did demand it, and the said conductor handed him his five dollar bill, and told him to pay the twenty-five cents the next time he got on said train, and to get off’ as quick as he-could, without offering or attempting to stop said train, or-to slacken its speed, to enable plaintiff to get off, and in-pursuance of said direction plaintiff' did jump off of said train while the same was in motion, and running at a rate of speed of only four or five miles an hour, and received: 'the injury complained of in the petition ; and if they find. that in so jumping off said train the plaintiff exercised such care as a reasonably prudent man, under the same circumstances, would, have done, then the defendant is liable, and the plaintiff is entitled to recover.” To which charge defendants excepted.

That is to say : 1. If the conductor “ ordered or directed the plaintiff to jump while the train was in motion, neither stopx>ing nor attempting to check it up, the defendant was, as matter of law, liable for the injury, provided ordinary care and prudence was used by the plaintiff to avoid injury while jumping off. 2. If the conductor told plaintiff to get off as quick as he could, without stopping or attempting to-stop the train, and in- pursuance of said direction plaintiff-jumped oft', while the train was in motion and running at the speed of four or five miles an hour, the plaintiff is entitled to recover, if the jury find “ that in so jumping off said train the plaintiff exercised such care as a reasonably prudent man, under the same circumstances, would have done.”

The charges involve the same principle, and are liable to the same objections.

They assume that the liability of the defendant for the-injury was absolutely fixed, provided the plaintiff jumped with proper prudence and skill, however imprudent the act may have been.

They take from the jury as a fact, the question as to whether the plaintiff was guilty of contributory negligence in the transaction, provided the plaintiff was ordered or told to get off, and provided he jumped as a prudent and careful man would under the same circumstances.

They charge to the defendant’s account whatever imprudences or faults the plaintiff may have been guilty of in getting on the train while in motion, and thus creating the emergency out of which the injury arose, or in getting off again, without any compulsion, or without requesting the conductor to check or stop the train, provided the mode and manner of jumping off was such as a'careful and prudent, man would adopt.

To entitle the plaintiff to recover, he must show :

1. That the defendant’s negligence caused or directly contributed to the injury.

2. That the plaintiff himself was without fault directly contributing to, or causing the injury.

Eor the purposes of this discussion, we may assume that a case was made showing that defendant was at fault in not stopping or checking the train to let the plaintiff off', and that this fault directly contributed to the injury; though we are inclined to the opinion that, under the special circumstances of this case, that was a question of fact for the jury, rather than of law for the court, as the charge assumes, when the jury are told that upon these facts the plaintiff was entitled to recover, if he had jumped with proper care and skill.

The chief objection to these charges which we shall notice is, that they take from the jury all questions of fault or negligence of the plaintiff in getting on and off the train while it was in motion, provided he exercised proper care and prudence in the manner of getting off, if he was directed or told to get off.

The plaintiff’s journey had ended. He was no longer a passenger “in the custody or under the control of the defendant, as a carrier.” Their relations to each other were •only such as grew out of the failure of the conductor to return him his change. Finding that the train was starting, .and that the conductor was going without fulfilling his promise, the plaintiff’immediately determined to board the moving train, to obtain his money, and get off again, as may well be supposed, rather than await the return of the ■conductor, or suffer the delay and inconvenience of obtaining his money in some other mode.

We may assume that the defendant was liable for this omission of the conductor to return the plaintiff his change, and that the plaintiff might legally and rightfully board •the moving train to obtain it; yet the fact remains that he voluntarily did so, and thereby cheated the emergency which then arose. We may further assume that this emergency arose primarily from the failure of the conductor to return the change, yet that failure did not relieve the plaintiff from whatever fault he was guilty of in boarding the moving train, and thus becoming the proximate ■cause of the emergency leading to the injury.

Krouse elected to make this hazardous effort to regain his money, rather than resort to other methods, and suffer the inconvenience of doing without it. We agree he might lawfully do so, and that in so doing the company was not relieved of its duty of care and prudence toward him, while so employed, not as a passenger, but as one having lawful business to transact with the conductor. We agree, further, that upon the evidence in this case, it was the duty of the defendant to have slackened or stopped the train to let the plaintiff off. Our objection to this charge is, that the court assumed, as matter of law, that however much "the plaintiff was to blame in attempting to get off the train moving at this rate of speed, and at a place not intended to be used for that purpose, without an effort to have the train stopped, he was entitled to recover, if he got off with proper care and skill.

The jury were told, if the conductor had told him to get off the train while in motion, without attempting to stop it, that direction relieved the plaintiff from all blame or imprudence in undertaking this hazardous leap, if he performed it in a skillful manner, although the plaintiff admitted, in his evidence, he was under no compulsion to do so.

Whether the plaintiff' was guilty of contributory negligence, was a question of fact for the jury, under proper instructions from the court.

The plaintiff had helped to create the emergency that caused him to attempt to jump from the train. The court assumed that this attempt was dangerous, and imputed to the defendant all the liability for the act of jumping, and instructed the jury to give the plaintiff a verdict, if “ in so jumping,” he did it in a proper manner, thus taking from the jury all inquiry as to contributory negligeuceof plaintiff, except as to the manner of performing the leap.

Whether the plaintiff was guilty of such negligence .■should have been submitted to the jury, without the qualification embraced in these charges. If the conductor had -ordered or directed the plaintiff to get off the moving train, that was a circumstance proper to go to the jury, in determining whether the plaintiff was justified in making the .attempt. It did not, as a matter of law, relieve the plaintiff'unconditionally and absolutely from all blame, or transfer it to the defendant. It was for the jury to say, under all the circumstances of the case, whether it was imprudent in the plaintiff to make the attempt, and in doing so, this remark of the conductor and its influence on the action of the plaintiff should have been considered.

We have been cited to a number of cases where it has ¡been held, that the order or direction of the officers or employes of the railroad, made to passengers, excuse them from the consequences of attempting to comply with such orders or directions. Among these are Filer v. N. Y. Cent. R. R. Co., 49 N. Y. 47; Delamatyr et al. v. Milwaukee, etc. R. R. Co., 24 Wis. 578, 586-7; Filer v. James, 59 N. Y. 351; Warren v. Fitchburg R. R. Co., 8 Allen, 227; Lambeth, Adm’r, v. North Carolina R. R. Co, 66 N. C. 494; Sweeny v. Old Colony, etc. R. R. Co., 10 Allen, 368; Gaynor v. Same, 100 Mass. 208; Mclntire v. N. Y. Cen. R. R. Co., 37 N. Y. 288-9, 293-4.

These cases rest upon the ground that passengers have-a right to assume that the employes of a railroad know when an act is safe and when it is not, and that they would not direct a passenger to do it unless it was safe, and that the road, by such orders or directions of its employes, has-involved the plaintiff in the act, whether it be that of leaping from the ears while in motion, or any other act by which he is injured. And they show a variety of other-acts, beside directions in words- to leap from the train, which, when committed by their employes, are held to have-involved the plaintiff in the act which resulted in his injury, and that consequently the road is liable.

In Filer v. N. Y. Cent. R. R., 49 N. Y. 47, it is said,, “"When a passenger upon a railroad, by the wrongful act of the company, is to be put to an election between leaving the ears while they are moving slowly, or submitting to-the inconvenience of being carried by the station where-he desired to stop, the company is liable for the consequences of the choice, provided it is not exercised wantonly or unreasonably.”

In that case the injury- occurred in consequence of a passenger attempting to pass from one car to anqther while in motion, in compliance with directions of an employe. The defendant asked the court below to charge the jury,, that as a matter of law, the injured party was gnilty of contributory negligence in making the attempt to pass, not•withstanding the directions.

The court say: “There is much evidence tending to-show, that in moving from one car to the other, the deceased was but obeying the directions of the employes of the defendant, and it was eminently proper for the judge to have left to the jury the question, whether under the circumstances disclosed, the deceased was guilty of any negligence in complying or attempting to comply with those-directions.”

This is an authority directly in support of the conclusions we have reached.

Delamatyr v. The Milwaukee, etc. R. R., 24 Wis. 578, was the case of a passenger attempting to leave the car at a station, and was injured in so doing.

It is said: “ Where a railroad company by its negligence-compels a passenger to chose between incurring some risk in leaving the train, and being exposed to other inconveniences to which it has no right to expose him, and he is injured in getting off, under circumstances which would not prevent a person of ordinary prudence from doing so, the company is liable.”

After stating this rule of law, the court in noticing the point made by defendant, that the plaintiff was guilty of contributory negligence, say: “ That it was purely a question for the jury to find, in view of all - the facts, whether Mrs. Delamatyr was guilty of .any negligence in descending the steps or jumping from the cars in the manner she did. As a matter of law, the court surely can not say that she was careless or reckless in her conduct.” After referring-to the testimony, that she was directed to jump off' it is said: “ Thus, it will be seen that the court left to the jury the question, whether upon the facts disclosed, Mrs. Delamatyr was guilty of negligence; and we think that, preeminently, that was a question for the jury to decide, and not one for the court.”

In McIntire v. N. Y. Cent. R. R., 37 N. Y. 288, the passenger had attempted to pass from one car to another,, while the train was in motion in obedience to directions of an employe of the company in order to obtain a seat, and was killed.

The defendant asked the court to hold, as a matter of law, that the plaintiff was guilty of such contributory negligence as barred a recovery. This the court refused to do, holding that being bound to furnish the passenger a seat, and having directed her to go forward on a moving train to obtain it, the company, and not the passenger assumed the hazard of the undertaking.

Filer v. N. Y. Cent. R. R., 49 N. Y. 47, was a case of a passenger attempting to alight at a station, while the train ■was still moving in obedience to directions by a brakeman.

The court of appeals, in disposing of the case, say (pages •50, 51 and 52: “ The fact is undisputed that the plaintiff received the injury while attempting to get off the cars while they were in motion, making very slow progress, and the jury have found that she was directed by the brakeman on ■ the cars to get off,\ and was told by him that they would not •stop, or move more slowly to enable her to do so. That it was culpable negligence on the part of the defendant to in- ■ duce or permit the plaintiff to leave the train while in motion, and a gross disregard of the duty it owed her not to stop the train entirely, and give her ample time to pass off with her baggage, is not disputed. Notwithstanding this, if the plaintiff did not exercise ordinary care, and might with ordinary care and prudence have avoided the injury, she is precluded from recovering.”

“ The degree of negligence of which the parties are respectively guilty, or whether the fault of the defendant was a breach of contract, or the mere omission of some duty resting upon it as a carrier of passengers, is not material.”

“ The plaintiff’s negligence may have been slight, and ■that of the defendant what is ordinarily termed gross, but-if the plaintiff’s fault directly and proximately contributed to the injury, she can not recover. . . .

“ That there was more hazard in leaving a car while in motion, although moving ever so slowly, than when it is at rest, is self-evident. But whether it is imprudent and careless do make the attempt depends upon circumstances; and when a ■.party by the wrongful act .of another, has been placed in circumstances calling for an election -between leaving the-cars or submitting to an inconvenience and a further-wrong, it is a proper question for the jury whether it toas a prudent and ordinarily careful act, or whether it was a rash and reckless exposure of the person to peril and hazard.”

This case came again before the court, in 59 N. Y. 351,. upon the charge of the court below, that it was immaterial who gave the direction, whether it was the brakeman, or a - person not connected with the train, and left it to the jury to say whether it was prudent for her acting under the advice • given by anybody to alight from the train.

It was held this was error, for the obvious reason, that the employes of the train are in the line of their duty in.assisting passengers on and off the train, and in directing them in procuring seats, and that when they give directions, passengers will naturally assume that they know it is entirely safe, or the direction would not be given, which would not be the case if the advice or direction comes-from those not connected with the train.- It is said that passengers rightfully assume that these persons are familiar • with the movements of the train, and know whether the • passenger can comply with the directions with safety.

The point there decided, simply was that directions given-by employes stood on a different ground as affecting contributory negligence, than those given by strangers, and", that it was error to charge the jury there was no material difference. The language of the court, in 49 N. Y, which we have quoted and emphasized, to the effect that it is a. proper question for the jury, whether in case of such directions by a brakeman, it was a prudent and careful or a. rash and reckless exposure of the person to peril and hazard, was left unqualified as the law of the case.

Warren v. Fitchburgh R. R. Co., 8 Allen, 227, cited by defendant, instead of being an authority for him is strongly the other way.

In that ease, a person having purchased his ticket, was. directed by the station agent to ¡¡.cross over the track, to: take lais place on the train, and while doing so in company with the agent was struck by a train and injured.

The court says: “It was shown that the plaintiff had •purchased his ticket . . and was waiting in the passenger station for the arrival of the train . . that the station agent said to him, The train is coming; we will ■ cross over,’ upon receiving this information and direction the plaintiff’ followed the station agent, from the room across toward the train, . . . and was hurt by the moving train.”

“ Whether, in this condition of things, in his anxiety ■seasonably to reach the train, which would stop but for a moment, the plaintiff', at a station with which he was not •familiar, would have been likely to be thrown off' his guard, by the direction to ctoss over given without any caution or ■ qualification; whether he might naturally, and without subjecting himself to the imputation of want of care, have considered himself under the charge of the defendant’s agent, with an assurance that it was safe and proper to go directly to .the cars, were questions for the jury, and not for the court.”

So in Sweeny v. Old Colony R. R. Co., 10 Allen, 358, when a person was injured while crossing a railroad track upon receiving a signal from the flagman that it was safe; it was held, that this fact, with others warranted the jury in finding for the plaintiff'. It was said: “The question whether the plaintiff' was so induced was distinctly submitted to the jury by the court. . . . Certainly the evidence as reported well warranted the finding of the jury on this point.”

In Gaynhr v. Same, 100 Mass. 208, it was also held, that it was for the jury to determine whether the plaintiff was guilty of contributory negligence, although the arrangement and use of the premises, were such as to invite the plaintiff to cross the. track, iu attempting to do which' he was injured.

The Penn. P. P. Co. v. Kilgour, 32 Penn. 292, was a case •of a female passenger, with three young children, attempting to alight at a station, and was injured by the cars starting: it was held, that the question of concurrent negligence was to be determined by the particular circumstances of the case. . 1

It is unnecessary to notice further the authorities. The cases relied on relate chiefly to passengers and carriers, and to the effect of orders, directions, and instructions given to the former by the employes of the latter, in the performance of their duty as carriers, either as to the position and conduct of the passengers on the train, or as to getting on or off at the usual places or stations. There is a material difference between such orders, directions, advice, and instructions, and while in performance of the carrier’s duty, and those given by such employes not in performance of .such duty. If while a train was at full speed, the conductor should direct a passenger to jump out at a point extremely hazardous, between stations, it would hardly excuse the passenger from the legal consequences of contributory negligence, where he acted voluntarily. So when, as in this case, the relation of passenger and carrier did not exist, and the emergency is one for which the plaintiff was at least equally at fault with the defendant, it was eminently proper that questions of contributory negligence of the plaintiff as to the propriety and prudence of making the effort to get off, as well as to the care and .skill exercised in doing so, should have been left to the jury. If the conductor advised or directed him to get off' the train while in motion, that was a circumstance to be considered by the jury upon the issue. Its effect on the plaintiff’s mind and conduct was for them to determine under all the circumstances.

It was the province of the jury to determine both the nature and effect of this remark of the conductor; whether it was intended and understood as an order to leave the train, or was by way of advice, or as a suggestion for the plaintiff’s benefit, and in furtherance of what the plaintiff intended to do ; and also whether such remark influenced ¡the action of plaintiff and caused him to act differently from what he otherwise would have done. Wharton on Neg., see. 38; Johnson v. R. R. Co., 7 Penn. St. 357; Ill. Cent. R. R. Co. v. Able, 59 Ill. 181.

This error is not cured by the general instructions. Every charge should be predicated on the issues and facts of the-case. A specific charge, based on particular facts, which if followed by the jury causes an erroneous verdict, is not cured by correct general charges applicable to cases of this-class as well as the case at bar.

Judgment reversed and cause remanded.  