conductor of the freight train, or other person connected with it; on the contrary, the reasonable presumption from all the evidence and circumstances is that he had not received any orders from the conductor, and that is act in crossing the track was entirely voluntary on his part.

The counsel for the respondent has argued with much ingenuity that the general rule of law as it has been heretofore understood has been so modified by the decision of the court in the case of Chicago Railroad Company v. Ross, 112 U. S. 377 [28 L. ed. 787], as permits a recovery by the plaintiff in this suit. We do not think that the decision in that case supports plaintiff's position. It modifies and limits to some degree the extent to which the rule is applicable, and holds, substantially, that an employé of a railroad company may, under some circumstances, and as to some persons, become a representative of his employer to such an extent as to render his principal liable for his negligent acts; and that a conductor of a railroad train, having a right to command its movements and control the other persons employed upon it, as to such persons may cease to be a fellow servant, while he remains in charge of such train, and may, under some circumstances, during such time, become a representative of the company.

This decision modifies the rule as laid down in Sherman v. Rochester Railroad Company, 17 N. Y. 153, and other like cases. But we do rot understand it overrules the general rule of law that where several persons are employed in the same general service, by a common employer, and one is injured by the negligence of the other, the employer is not responsible.

The facts and circumstances of that case were unlike the case at bar. There the conductor was charged with a special duty, which it was incumbent upon his employer to perform, and which he neglected to render. The engineer, the injured person, was subject to Lis command. Here it is expressly proven, and uncontradicted, that the conductor had no authority or control over the deceased. He was not then a superior over the deceased, and, as to him, did not represent the defendant.

The case of Northern Pacific Railroad Company v. Herbert, 116 U. S. 642 [29 L. ed. 755], also relied upon by the respondent, is not applicable here. That case decides that under section 1131 of the Civil Code a railroad company is liable to one of its employés-a brakeman-for the negligence of another employé -a car repairer-in failing to keep in proper repair certain appliances used by the injured person in the transaction of the business of the company, which he was employed to do, and he was held not to be in the saine business as the brakeman, who was injured by the use of a defective car. It was the duty of the company to provide safe machinery and appliances. The facts in these cases, and the grounds upon which the decisions rest, are clearly inapplicable to support respondent's position here; nor do they militate against the doctrine laid down in Randall v. Baltimore Railroad Company, supra, though the decision in the Ross Case was made subsequently.

The case of Garrahy v. Kansas City Rail read Company, 25 Fel. Rep. 258, as reported,

would seem to support respondent's position here. But in this regard it is apparently in conflict with Randall v. Baltimore Railroad Company, supra, though the learned judge who wrote the opinion in the former concurred in the decision in the latter, in which the court was unanimous; and the law as there pronounced must be taken and accepted as the law of this territory.

Several other decisions of the circuit courts have been cited by respondent as sustaining his view; but upon examination it will be found that they all proceed upon the doctrine of superior authority or control of one employé over another, or upon the negligence of the employer or person charged by him with the performance of a duty owing to the employé.

There is no pretense in the case at bar that the appellant failed to discharge any duty ow ing by it to the deceased, or that the company was negligent in the employment of, or reten tion in its service of, the conductor who had charge of the train. It is not, therefore, within the purview of section 1131, nor within the exception to section 1130. On the contrary, it comes directly within the exemption defined by section 1130, and within the doctrine of the common law, as stated in Randall v. Baltimore Railroad Company, supra.

Since the decision in the Garrahy Case the question here involved has been before several of the Circuit Courts of the United States, and the decision in the Randall Case adhered to and followed.

Thus, in Van Wickle v. Manhattan Railway Company, 32 Fed. Rep. 278, it was held that a track repairer and an engineer were co-emplo, és, and that the company was not liable to the former for an injury resulting from the negligence of the latter.

Coxe, J., in his opinion, after referring to the Garrahy Case, says: "Recognizing the marked lack of unanimity among the decisions, it may still be confidently affirmed that the proposition that persons holding the relation that this plaintiff and the engineer held to each other are fellow servants is maintained by a great preponderance of authority," and in support of this view he cites Randall v. Baltimore Railroad Company, Boldt v. New York Cent. Railroad Company, supra; Vick v. New York Cent. Railroad Company, 95 N. Y. 267; Brick v. Rochester, N. Y. & P. R. Co. 98 N. Y. 211; Quinn v. New Jersey Lighterage Co. 23 Fed. Rep. 303.

So, in Easton v. Houston R. Co. 32 Fed. Rep. 893, the United States Circuit Court, in Texas, made a similar ruling, Pardee, J., in his opinion, using the following language: "As federal authorities sustaining the finding of the master I have been referred to the case of Chicago Railroad Company v. Ross, 112 U. S. 377 [28 L. ed. 787], which holds that 'A conductor of a railroad train, who has the right to command the movements of the train, and to control the persons employed upon it, represents the company while performing those duties, and does not bear the relation of fellow servant to the engineer and other employés of the corporation on the train'; and to the later case of Northern Pacific Railroad Company v. Herbert, 116 U. S. 648 [29 L. ed. 758], where it was held that a brakeman and the officer or

This was the front car of the rear part of the train. It was on the main track."

Charles M. Taylor, sworn for plaintiff, testified: "There were at that time no buildings between the depot and car house, on the map here, about two hundred feet east of the depot. The ground is level-the whole station ground. It is pretty near level for six miles west and four miles east. It is level, you might say, all the way-only one foot between there and Garyville-six miles. The road is straight for about six miles west. Standing down here by the car-house, looking west, the ground is level -plain to be seen. There is nothing to interrupt the view from the car-house up above the west switch. It was a pleasant morning. Don't recollect whether it was sunshiny or cloudy. We could see all around—a good, bright morning."

W. J. Welsh, sworn for defendant, testified: "The first I saw of Elliot he was on the main track. He was running slowly, angling on the track-crossing the track at an angle. The front end of the rear section of the train at that time I should judge was about half a car-length from him. As soon as I saw him I hollered to him to get off. I told him to get off the track, or he would get run over. I did not have time to say it a second time when the car struck him."

This is substantially all the evidence in the case throwing any light on the conduct of the deceased at the time of the accident, and it shows conclusively, and is undisputed, that the morning on which the accident occurred was clear; that the track for several miles in either direction from the place of accident was straight, and the view unobstructed; that the deceased attempted to cross the main track with the rear section of the train-the one which ran upon him-in full view, and not more than twenty-five or thirty feet from him; that it was in motion; and that he was crossing the track diagonally, with his back turned partly towards the rear section of the train.

There is no pretense that he looked or listened. The conclusion from the evidence is irresistible that he did not look or listen before the attempt to cross the track; or, if he did, that he voluntarily, and with full knowledge of the danger he was incurring, unnecessarily placed himself in a position of peril and immediate danger. In either event, his negligent conduct in this regard-failing to know of the hazard he was taking upon himself, when to have had actual knowledge of it he had only to look or listen; or, knowing of the danger, deliberately and of his own volition unnecessarily assuming such risk-was negligence which, under the circumstances, must inevitably have contributed to the injury complained of. Chicago & N. W. R. Co. v. Donahue, 75 111. 106; Ernst v. Iludson River R. Co. 39 N. Y. 61; Weber v. New York Cent. & H. R. R. Co. 58 N. Y. 451; Baltimore & O. R. Co. v. Depew, 40 Ohio St. 121; Simmons v. Chicago & T. R. Co. 110 Ill. 340; Baltimore & P. R. Co. v. Jones, 95 U. S. 439 [24 L. ed. 506].

Nor was it any excuse for the failure of the deceased to look and listen that the defendant was making with its train what is known as a "flying switch." It was his duty, nevertheless, to have exercised his ordinary faculties to ascertain if there was danger in the attempt to

cross the track, and, if there was, to desist. Ormsbee v. Boston & P. R. Corp. 14 R. I. 102; Grethen v. Chicago, M. & St. P. R. Co. 22 Fed. Rep. 609; Haley v. New York Cent. & li. R. R. Co. 7 Hun, 84; Myers v. Indianapolis & St. L. R. Co. 113 Ill. 386.

It is doubtless a well established rule of law

that the question of concurrent negligence ought generally to be submitted to the jury. Poler v. N. Y. Cent. R. Co. 16 N. Y. 476; Keating v. New York Cent. & H. R. R. Co. 49 N. Y. 673; Butler v. Milwaukee & St. P. R. Co. 28 Wis. 487.

But when the facts are undisputed, and contributory negligence is established, the question becomes one of law, and the plaintiff may be nonsuited, or a judgment given for the defendant. Chicago, R. 1. & P. R. Co. v. Houston, 95 U. S. 697 [24_L. ed. 542]; Schofield v. Chicago, M. & St. P. R. Co. 114 U. S. 615 [29 L. ed. 224]; Morrison v. Erie R. Co. 56 N. Y. 302.

The evidence in this case is capable of but one construction-that the negligence of the deceased contributed to the injury complained of. The court should therefore have granted defendant's motion, and directed a verdict for the defendant.

Upon the trial of the cause the plaintiff was permitted, against defendant's objection, to ask several of the witnesses sworn in his behalf the following question: "Was Mr. Elliot a careful or a careless man in guarding himself and employés from danger from passing trains?" to which it was usually answered that he was a careful man. We think that the trial court erred in overruling appellant's objection to this question, and permitting the witnesses to answer. It was an important issue in the case whether the negligence of the deceased contributed to the injury.

The correct determination of this question could not be made to depend upon the fact of whether the deceased was usually careful or careless, but upon his conduct at the time of the accident. However careful he may have been generally would be of no avail to him if his negligence in fact contributed to the injury, and, however careless he may have been usually would not have been any defense to this action had he been free from negligence at the time the accident occurred. Chase v. Maine Cent. R. Co. 77 Maine, 62; Morris v. East Haven, 41 Conn. 252; Philadelphia, W. & B. R. Co. v. Stebbing, 49 Am. Rep. 628, 62 Md. 504; McDonald v. Savoy, 110 Mass. 49.

There are some cases holding that such evidence is proper when there were no eye-wit nesses of the accident, and no evidence in regard to the negligence or want of negligence of the person injured at the time of the accident. These cases proceed upon the theory that courts will presume upon proof of general habits of carefulness, or the contrary, when from the nature of things it is impossible to obtain better evidence that the injured person was or was not negligent at the time of the accident which resulted in the injury; or, from the natural instinct of self-preservation, sought to save himself. Chicago, R. I. & P. R. Co. v. Clark, 108 Ill. 113; Cassidy v. Angell, 12 R. I. 447.

But this rule has never been extended to any case when there were eye-witnesses to the acci

Laflin v. R. Co. and Raben v. R. Co. supra. Messrs. Nunn & Denny for appellee.

Gaines, J., delivered the opinion of the

court:

This was an action brought in the court below by appellee against the Missouri Pacific Railway Company and the International & Great Northern Railroad Company to recover damages for a personal injury alleged to have been received by the appellee in descending from a car of the appellant companies. The injury is alleged to have occurred by reason of the negligent failure of appellants to provide safe means for her descent.

The undisputed facts are that appellee and her daughter purchased tickets at San Antonio, and took passage on appellants' train from that point to Crockett. At Taylor it became necessary to change cars. On approaching the last named place, the car upon which they were traveling stopped at the regular stopping place, but at a point where there was no platform. A stool in the shape of a box, about eleven inches square on the top, and somewhat larger at the bottom, and constructed for the purpose, was placed upon the ground in front of the car steps to aid passengers in alighting. The appellee left the car after it had reached the station, but in descending she fell, and received the injury of which she complains. There can be but little doubt that the box overturned with her as she stepped upon it.

As to the circumstances attending the accident the testimony was conflicting. The ap pellee, her daughter, and another passenger deposed that she was not assisted in descending from the car by anyone. The conductor, the brakeman, and porter on the train testified that they saw the accident, and that the brakeman assisted her in alighting. They were corroborated on this point by two of the passengers. The appellee and her daughter testified that

| the ground upon which the box was placed was rocky and uneven, but the kind and size of the stones they do not state. The passenger who testitied for appellee gave testimony to the same effect, but it is evident he did not know whether stones were broken rocks or mere pebbles. A son-in-law of appellee testified that he saw the ground some time previous to the accident, and that there were fragments of broken rock upon it. Four of the defendants' witnesses deposed that the ground was covered with gravel, and was level and smooth as gravel could make it. The testimony of these witnesses also tended to show that plaintiff's fall was caused by her stepping upon the edge of the stool.

Such being the evidence, we must hold that appellants' first assignment of error, which calls in question its sufficiency to sustain the verdict, is not well taken. Notwithstanding the testimony of part of appellants that boxes of this character were in general use upon railroads to assist passengers in alighting, and that several passengers used the same box upon this occasion, and that none of them were injured, we do not think that the jury were bound to conclude that the appellants, in using it, exercised that high degree of care which their duty to the appellee required. She was a passenger alighting from the car upon which she had been traveling, to take another, and to complete her trip under her contract with appellants. They owed her the duty of providing, not only a reasonably safe appliance for enabling her to alight, in order to make the transfer, but the safest that had been known and tested.

It would be unreasonable to say that a small box or stool which presented the surface of about one square foot, and rested upon a base but a little more extensive, and which was shown to be capable of being overturned at least by an incautious step, could be as safe as a platform, such as is in ordinary use among

The words "Jump off quick if you are going to," spoken by the conductor to one who alighted from a moving train, did not constitute a requirement to leave the train so as to relieve him from the consequence of his negligence. Vimont v. R. Co. 71 Iowa, 58.

One voluntarily, and not to avoid sudden danger, jumping from a train of cars while in rapid motion, is negligent; but it is a question for the jury whether the stepping from a moving car to the station is negligence. Tabler v. R. Co. 11 West. Rep. 462, 93 Mo. 79.

The fact that the train is about to pass the place of the passenger's destination without stopping will not justify him in jumping from the train. Reibel v. R. Co. (Ind.) 14 West. Rep. 331.

Where a passenger injured by the sudden start of the train while alighting from it was under the influence of liquor, which contributed to produce the injury, he cannot recover. Strand v. R. Co. (Mich.) 11 West. Rep. 538.

When a train arrives at the depot and stops opposite the platform, it is a proper place for the passenger to alight, unless informed to the contrary. Leslie v. R. Co. (Mo.) 3 West. Rep. 824.

If a passenger elects to alight from a car at a place where there is no platform, when, by passing through the car in front of him, he could alight with safety on the platform, and he is injured by so

recover of the railroad company. Eckerd v. R. Co. 70 Iowa, 353.

In an action for a personal injury received in alighting from a car, the mere fact that the platform where plaintiff alighted was higher than that at another station of the road was immaterial. Nichols v. R. Co. 68 Iowa, 732.

A woman, in alighting from a railroad car at a station in the night time, fell and was injured, and sued the company for negligence in that the station platform was too far from the car. The platform had been in use for several years, and no one had ever before been injured or inconvenienced on account of its distance from the cars. It was held that the company was not legally responsible. Lafflin v. R. Co. 7 Cent. Rep. 793, 106 N. Y. 136.

A carrier is not liable for injury to a passenger who, after alighting safely from the platform, is run against by one of his fellow passengers and thrown upon the train. Reibel v. R. Co. (Ind.) 14 West. Rep. 331.

A passenger alighting from a train and taking a position upon the sidewalk of a highway ceases to be a passenger: and if injured while crossing the railroad track without looking for approaching trains cannot recover. Allerton v. R. Co. (Mass.) 5 New Eng. Rep. 825.

That a passenger alighting from a moving train is presumptively negligent, see N. Y. Phila. & N. R. Co. v. Coulbourn, 1 L. R. A. 541.