
    [No. 2067.
    Decided August 28, 1896.]
    Sarah Carroll, Respondent, v. Andrew F. Burleigh Receiver of the Northern Pacific Railroad Company, Appellant.
    
    CARRIERS — INJURIES TO PASSENGERS — CONTRIBUTORY NEGLIGENCE ■— INSTRUCTIONS.
    A passenger upon a freight train, which also carries passengers, who has been injured by the sudden starting of the train while alighting, is not guilty of contributory negligence, as a matter of law, in attempting to alight therefrom before it had pulled up to the depot platform, or before notice to get off had been given, when the train had come to a stop a few feet distant from the platform, where it appears that the train stopped at this time at its usual place of stopping, that it was customary for the passengers to get of at that place or when the first stop was made, and that the plaintiff had knowledge of such custom.
    The fact that the court, in charging the jury as to the right of plaintiff to recover in case of the defendant’s negligence, left out of consideration the question of contributory negligence of the plaintiff, is not error, when the court expressly charges the jury upon that point later in the course of its instructions.
    Appeal from Superior Court, King County.— Hon. Richard Osborn, Judge.
    Affirmed.
    
      Ashton & Chapman, for appellant.
    
      W. H. Thompson, E. P. Edsen and John E. Humphries, for respondent.
   The opinion of the court was delivered by

Scott, J.

Plaintiff brought this action to recover for injuries sustained by being thrown from the defendant’s train, and, obtaining a judgment, the defendant has appealed.

The train in question was a freight train, but it also carried passengers. On arriving at plaintiff’s destination the train came to a stop a few feet distant from the depot platform and plainitiff arose to alight, and as she got upon the rear platform the train suddenly started and threw her to the ground, whereby she was injured.

Appellant contends that the plaintiff should not have been allowed to recover because she was guilty of contributory negligence in getting up to leave the car before it had pulled up to the platform, or before notice to get off had been given.' But there was testimony to show that the train stopped at this time where it usually stopped, and that it was customary for the passengers to get of at that place, or when the first stop was made, and that the plaintiff had ridden upon such train several times before. Under such circumstances we could not hold as a matter of law that the plaintiff was guilty of contributory negligence in attempting to leave the car as she did. At most it could have been but a question of fact for the jury, and it was properly submitted to them under the instructions of the court.

Several of the instructions are also complained of by the appellant. As to the first one, it is contended that the court in instructing the jury as to the right of the plaintiff to recover in case the defendant was negligent, left out of consideration the question of contributory negligence of the plaintiff. But, conceding this to be true, the court expressly instructed the jury later on, that notwithstanding the negligence of defendant, if the plaintiff’s negligence contributed to the injury, she was not entitled to recover, and consequently there was no error.

We think there is no error in any of the instructions, that the cause was fairly submitted to the jury, and that the proof was sufficient to sustain the verdict obtained by the plaintiff. . There being no other matter complained of calling for special attention, the judgment is affirmed.

Anders, Gordon and Dunbar, JJ., concur.  