is usual in this class of cases, was conflicting in its character. Under such circumstances, the disputed and doubtful matters must in the nature of things be left for the consideration and determination of the jury; these are subjects on which it is their province to pass. These matters are strictly for their determination. There appears to be no serious or material error in the record, and the judgment of the district court is accordingly affirmed. Affirmed. DENVER, S. P. & P. R. Co. v. PICKARD. (Advance Case, Colorado, February 20, 1885.) A time-table which announces on its face that it is for the government and information of employés only, and in terms reserves to the company the right to vary therefrom at pleasure, and which bears also the explanation as to the stations mentioned in it, that flag stations are designated by a star, is not of itself sufficient evidence to show that a station not so designated on it had been advertised either to the public or the plaintiff as a regular passenger station. In the absence of proof that at a certain point on defendant's road a passenger ever got on or off a train while in motion by invitation or direction of defendant's employés-it appearing that the slowing up of trains there was designed for other purposes-there is no such evidence of custom as will bind the company in an action for damages caused by a party's en deavoring to get on a moving train at that point. APPEAL from the District Court of Chaffee county. Browne & Putnam, for appellee. BECK, C. J.-This was an action against the railroad company for damages alleged to have resulted to the plaintiff from its negligence. Judge Cooley says: "Where negligence is the ground of an action, it devolves on the plaintiff to trace the fault for his injury to the defendant, and for this purpose he must show the circumstances under which it occurred. If from these circumstances it appears that the fault was mutual, or, in other words, that contributory negligence is fairly imputable to him, he has, by showing them, disproved his right to recover." Cooley, Torts, 673. The plaintiff's injury, complained of in this case, was serious and permanent, and by the verdict of the jury and judgment of the court he was awarded, as damages therefor, the sum of $25,000. The first question presented for our consideration is whether the court erred in denying the motion for nonsuit interposed by defendant's counsel at the close of plaintiff's direct testimony. A proper determination of this question involves the decision of two other legal questions arising upon the facts in evidence, viz. : First.-Was the station Divide, where the injury was received, a regular passenger station on the defendant's road, where its trains were legally obliged to stop for passengers? Second.-Did the legal relation of carrier and passenger subsist between the parties at the time of the injury? In support of the proposition that Divide was a regular passenger station, plaintiff introduced in evidence, against the objections of the defendant, a time-table issued by the officers of the railroad company, and which went into effect on the day of the accident. The pleading was as follows: "The Denver, South Park & Pacific Railroad Time-table, No. 37. To take effect Thursday, October 21, 1880, at 12:15 o'clock For the government of employés only. The company reserves the right to vary therefrom at pleasure.' A. M. The table contains the names of the various stations upon the line of defendant's road, including the station Divide, with the times of the arrival of trains thereat. In a note at the bottom it is stated that flag stations are designated by a star. The station in question is not so marked. While the evidence was admissible, in our judgment, in connection with other facts bearing upon the question, it falls far short of proving the fact sought to be established. It does not purport to be an advertisement for the information of the traveling public, but, on the contrary, every person into whose hands such card may fall is advised against such a conclusion, and that it cannot be relied upon for such purposes. In Beauchamp v. International & G. N. Ry. Co., 56 Tex. 239; s. c. 9 Am. & Eng. R. R. Cas. 307, it was held that a time-table, which on its face announces that it is for the government and information of employés only, and, in terms, reserves to the company the right to vary therefrom at pleasure, is not admissible in evidence in a suit for damages against the company for not stopping at a place mentioned therein. Perhaps that ruling is not applicable here, owing to the fact that other evidence was submitted upon the same point. Plaintiff testified that the company's station agent at Buena Vista, where plaintiff resided, and where he held the office of postmaster, gave him one of these cards on the day preceding the accident, to be used in making up the mails. Joseph Nevitt, deputy-postmaster at Divide, testified that Divide was a regular station, but his answers to a few questions disclose his ignorance of the subject: "Question.-Did the trains always stop there? Answer.— Whenever they felt inclined. Q.-What do you call a regular station and a flag station? A.-I am not railroad man enough to define it. Q-And you think you are able to say positively that was not a flag station? A.-I am, by their own actual time card." He further testified that defendant's master of transportation, John McCormick, had previously declared to him that Divide was a regular station; that it was the duty of engineers to stop their trains there, and requested the witness to report those who did not do so. It does not appear that the declarations of McCormick had been communicated to the plaintiff, so they certainly did not influence his conduct. Nor did the fact that one of these cards was sent to him for the special purpose mentioned, by an employé of the defendant, previous to his injury, warrant him, in view of the precautionary advice therein contained, in relying upon it for any other purpose. But the plaintiff's_testimony disclosed other facts with which he was acquainted, and which have an important bearing on the question. There was at this station neither a station-house, ticket-office, nor waiting-room. No tickets were sold here for any point on the line, nor was there a station agent or a railroad employé in the place. There was a platform beside the track, such as were used at other stations, but even this did not belong to the company, the witness Nevitt stating that it was his own private property. The latter fact is not material, however, since the company used it when it had occasion to do so. Plaintiff's witnesses all agree that trains did not regularly stop at this station, some of them saying it was necessary to flag them to have them stop. We consider the testimony wholly insufficient to show that Divide had been advertised either to the public or to the plaintiff as a regular passenger station. It certainly does show that it was not used as such. Regarding the relation which the plaintiff bore to the railroad company, his counsel insist that going upon the platform with the bona fide intention of taking the train and paying his fare, consummated the relation of carrier and passenger between the parties. It is conceded that he held no ticket, but he testified to his ability to pay his fare, which counsel say was sufficient. In support of the proposition that plaintiff sustained the relation of a passenger, the following is quoted from Shear. & R. Neg., Sec. 262: 66 Any acts indicating on the one side an offer or request to carry or to be carried, and on the other an acceptance of such offer or request, are sufficient. It is not necessary, in order to create the relation of carrier and passenger, that the latter should have actually entered the vehicle, much less that it should have started on the journey without him.” Other parts of the same section are germane to the facts of the present case, viz.: "A passenger is a person who undertakes, with the consent of * * * the carrier, to travel in the conveyance provided by the latter. Where the carrier provides a waiting-room for passengers, entry into that room, with intent to travel under the carrier's charge, is sufficient to give the rights of a passenger. Where it is the practice of the carrier to stop for passengers when hailed, the fact that he stops for a passenger hailing him is sufficient evidence that he accepts such person as a passenger; and from that moment the relation begins." The rule of this section would not seem to include a case where no waiting room was provided, no tickets sold, and where the carrier did not stop for the passenger, and where the plaintiff is unable to testify or prove that the carrier was aware of his intention to get upon the train. Counsel also quote to the same proposition the following detached sentences from Hutch. Carr.: "Payment of fare or purchase of ticket not required." Secs. 565, 568. 66 Waiting at station for expected train is enough." Sec. 559. "Relation arises without priority of contract." Sec. 567. "Averring a readiness to pay fare is sufficient." Sec. 565, note 2. A reference to the foregoing sections shows that these general expressions are materially qualified by the context; for example, Sec. 465: 66 Taking his place in the carrier's conveyance, with the intention of being carried, creates an implied agreement upon the part of the passenger to pay when called upon, and puts him under a liability to the carrier, from which at once spring the reciprocal duty and responsibility of the carrier.” Secs. 566, 567 relate to the carrying of persons gratuitously, and upon free passes. The authorities referred to in note 2, Sec. 565, relate to cases where passage is taken without prepayment. It is apparent that these citations do not sustain the proposition. The rules cited in Thomp. Carr. Pass. 43 are equally inapplicable to the facts in the case before us. It is there said that payment of fare is not necessary to create the relation, but that going into the depot or waiting-room of a railway company and waiting for the means of conveyance with the bona fide intention of becoming a passenger, or upon a steamboat, in good faith, to take passage thereon, creates the relation although no fare has been paid. But it is claimed that a custom existed at this station for which the defendant is responsible, and which, in connection with the facts proven, brings the case within the rules of the foregoing authorities. It is alleged that it was the practice of the defendant's employés to slow up the trains in passing this station so that passengers could get on or off as they desired, and that travelers knowing or becoming informed of the custom frequently availed themselves of it; that the plaintiff had been told of this custom, also that trains frequently passed by without stopping, and that he must be prepared to get aboard the train while in motion. It is argued that a custom to slacken speed for the purpose of enabling passengers to get on and off moving trains is equivalent to an invitation to do so, and renders the carrier liable for injuries sustained in an attempt to comply therewith. The substance of the plaintiff's testimony on this point was that several persons residing at Divide told him that trains frequently passed without stopping, and that he would have to look out and get on while the train was in motion; that passengers frequently had to do this. Joseph Hewett swears that he told plaintiff that there had been occasions when the train passed by and left passengers, and it would be well for him to be on the alert. He also stated that he knew of several instances where persons had got on and off moving trains at the station, but did not know whether it was done with the assent of the officers of the company or not. O'Neil, who had resided there ever since the road was built, said he had witnessed several similar instances, but did not know whether it was a regular custom or not. He had noticed that the trains slackened up to take on the mail. McArthur jumped off the train once at Divide while it was in motion, and at another time was carried two miles past. Cram knew nothing of the custom, but mentioned two instances wherein trains failed to stop for him at this station. No witness was able to swear to an instance where a passenger got on or off a train in motion by invitation or direction of defendant's employés. This being the state of the proof, and it appearing that the slowing up may have been for other purposes than those alleged, we think the proof of the custom mentioned is insufficient to establish it. It remains to inquire whether the facts and circumstances transpiring immediately prior to the accident justified the plaintiff's attempt to jump upon the train. Deputypostmaster Russell accompanied the plaintiff to the platform, carrying the mail to be sent off, and a lantern to signal the train. The train arrived from Denver that evening at six o'clock. After it appeared around the sharp curve to the north of the station, Russell swung his lantern across the track, as a signal to stop, and one whistle was blown from the engine, which, plaintiff says, was in response to the signal. The train slowed up, and Russell set down the lantern, and, picking up the mail sack, held it out for the mail agent as the train passed by, but he failed to get it. The train did not stop, and plaintiff attempted to get upon the front end of the rear car as it passed the platform. He caught the iron railing with his left hand, the iron handle on the end of the car with his right, and put his right foot on the car step. Just at that moment, and as he was about to raise to the platform, the car was violently jerked by letting off brakes or putting on steam, and plaintiff was hurled underneath the platform, and his left arm so crushed by the rear truck, which passed over it, as to require |