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."

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. & H. 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. I. & 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 This is substantially all the evidence in the permitted, against defendant's objection, to ask case throwing any light on the conduct of the several of the witnesses sworn in his behalf the deceased at the time of the accident, and it following question: "Was Mr. Elliot a careshows conclusively, and is undisputed, that the ful or a careless man in guarding himself and morning on which the accident occurred was employés from danger from passing trains?" clear; that the track for several miles in either-to which it was usually answered that he direction from the place of accident was was a careful man. We think that the trial straight, and the view unobstructed; that the court erred in overruling appellant's objection deceased attempted to cross the main track to this question, and permitting the witnesses with the rear section of the train-the one to answer. It was an important issue in the which ran upon him-in full view, and not case whether the negligence of the deceased more than twenty-five or thirty feet from him; contributed to the injury. 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 Ill. 106; Ernst v. Hudson 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

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-witnesses 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

dent. The facts in these cases are entirely dis- | udiced by it, and that the jury may have atsimilar to those in the case at bar, and the doc-tached great importance to it.

trine there enunciated is not applicable. This For these reasons the judgment of the Court beevidence was submitted to the jury without ex-low must be reversed, and a new trial ordered. planation, or direction to disregard it, and it is All the Justices concur, except Justice

obvious that the defendant may have been prej- Palmer, dissenting.

APPEAL by defendants from a judgment of the District Court of Houston County in favor of plaintiff in an action to recover damages for personal injuries alleged to have resulted from defendants' negligence. Affirmed. The facts are fully stated in the opinion. Messrs. Burnett & Hays, for appellants: The evidence showed that appellants furnished suitable and safe appliances for passen

1. A railroad company stopping a passenger car at a point where there is no platform owes a passenger not only a reasonably safe appliance for enabling him to alight, but the safest that has been known and tested. 2. A stool in the shape of a box about eleven inches square on the top and somewhat larger at the bottom, which is capable of being overturned at least by an incautious step, and which is fur-gers to alight on, which appliances had uninished by a railroad company for a passenger to formly proved safe and sufficient, and that the alight upon at a place where there is no platform, aecident which caused appellee's injury was may be found by a jury not to be such a substi- the result of her own want of due care, or was tute for a platform as it was the duty of the com- a misadventure, for which appellants are not pany to furnish, without regard to the time it liable. had been used and the number of persons who had passed over it securely, or to expert opinion as to its safety.

been.

3. It is the duty of a railroad company which furnishes a box for passengers to alight upon at a point where there is no platform at least to render such assistance to passengers as to make the box as safe as a platform would have 4. Where there is no evidence on which to base a theory of pure accident, and the proof shows negligence either upon the part of a passenger in alighting from a train or on the part of the carrier, a charge to the effect that "If the plaintiff stepped carelessly or accidentally on

NOTE.-Carrier; duty to land passenger safely. Landing is part of a contract with a passenger Post v. Koch, 30 Fed. Rep. 208.

A train should remain standing a length of time sufficient to enable a passenger safely to remove himself, his wife and minor children and baggage. Hurt v. R. Co. (Mo.) 13 West. Rep. 233.

If the trains of the defendant railroad company were accustomed to stop at the platform at which the plaintiff desired to alight, although it was neither constructed nor owned by the company, an implied contract that passengers might stop there may be raised. Louisville & N. R. R. Co. v. Johnston, 79 Ala. 436.

A railroad company carrying passengers is liable for damages for an injury resulting to a passenger from failure to call out the name of the station and to stop sufficiently long for him to get off. Louisville, N. O. & T. R. Co. v. Mask, 64 Miss. 738.

Howell's Statutes, § 3324, render a railroad liable for a failure to stop its train for the passenger holding a ticket over its road, where the proper signal has been given and the company is without lawful excuse for the neglect. Freeman v. R. Co. (Mich.) 9 West. Rep. 117.

Where a train at night stopped before reaching the station, and a passenger was injured in consequence of leaving the train, the question of negligence was properly left to the jury. Boss v. R. Co. (R. I.) 1 New Eng. Rep. 39.

Laflin v. R. Co. 7 Cent. Rep. 793, 106 N. Y. 136, 30 Am. & Eng. R. R. Cas. 596; Raben v. R. Co. 74 Iowa, 732, 31 Am. & Eng. R. R. Cas. 45; Simms v. R. Co. 30 Am. & Eng. R. R. Cas. 571; Eckerd v. R. Co. 70 Iowa, 353; Delaware, L. & W. R. Co. v. Napheys, 90 Pa. St. 135; 1 Am. & Eng. R. R. Cas. 52; R. R. Co. v. Statham, 42 Miss. 607; Wabash, St. L. & P. R. Co. v. Locke, 11 West. Rep. 877, 112

Ind. 404.

It was not appellants' duty to furnish some one to aid appellee in alighting from the car, if proper and suitable facilities were supplied for the safe debarkation of their passenger.

Where defendant stopped its train at an unusual and unsafe place, before reaching which the station was announced, on a dark night, the conductor's failure to warn the passengers of the dangerous character of the surroundings was gross negligence. McGee v. R. Co. 10 West. Rep. 282, 92 Mo. 208.

The failure of a railroad company to put a passenger, a woman advanced in pregnancy, off at the usual platform, without good reason, is an act of negligence for which such passenger can recover— if injured by reason thereof without fault on her part. Balt. & O. R. Co. v. Leapley (Md.) 4 Cent. Rep. 253.

It has been held that where a passenger leaves a train, and in making his way to the station is injured by negligence of servants, the company is liable. Cincinnati etc. R. Co. v. Carper, 11 West. Rep. 225, 112 Ind. 26.

Injury suffered in alighting from train.

A conductor is the general agent of the company so far as concerns the rights of passengers when alighting from the train. Louisville, N. A. & C. R. Co. v. Wood, 13 West. Rep. 319, 113 Ind. 570.

A consumptive who is wrongfully injured in alighting from a train, so that a hemorrhage results, may recover damages, although the servants of the carrier may not have had reason to appre

Laflin v. R. Co. and Raben v. R. Co. supra. | the_ground upon which the box was placed was Messrs. Nunn & Denny for appellee.

The words "Jump off quick if you are going to," | 70 Iowa, 353. 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

railroads. If it were not the jury were author-, that the latter instruction requested should not ized to find that the companies had not exercised have been given. The carrier must furnish the the degree of care required of them. passenger not only a reasonably safe appliance, but the safest.

It is apparent, from the testimony in the case, that if a platform had been provided, or even a safe substitute, such as could not have been overturned by a step on the edge, the injury in this case would not have resulted; and it fol lows that no amount of testimony as to the length of time it had been used, and the number of persons who had passed over it securely, or of expert opinion as to its safety, ought to be permitted to overcome the undoubted physical facts in evidence.

It follows that, in our opinion, the court did not err in giving the charge complained of in the third assignment of error. The statement under the assignment in the brief is that "The court charged that if defendants failed to furnish such facilities, appliances or assistance to plaintiff in alighting at Taylor as prudent and competent persons in the same business would commonly employ in like situations and circumstances, and plaintiff's injury resulted therefrom, to find for her, unless she was guilty of contributory negligence.' If there is error in this, it is an error which is favorable to appellants.

It is also complained that the court erred in qualifying charge No. 3 asked by appellants. The charge, as qualified, is as follows: "If you believe from the evidence, or a preponderance of the evidence, that the stepping stool used by defendants for passengers to alight on. at the time plaintiff was injured, was a reasonably safe appliance for the purpose, and it was properly placed on ground sufficiently smooth or even, so as to prevent it from turning or tilting by the use of due care on the part of passengers, and the defendants were not guilty of negligence in using it, nor otherwise guilty of negligence, you will find for defendants.

"

The modification consisted in the insertion of the words which appear in italics. We think the charge was not proper without the qualification, and with it is quite as forcible as ap pellants had a right to demand.

The appellants also asked a charge to the effect that "If the plaintiff stepped carelessly or accidentally on or near the edge of the box, and her fall was occasioned thereby," the jury should find for defendants. This charge was also refused, and in this there was no error.

The appellants also asked the following instructions, which were refused: "It was not the legal duty of defendants to have assisted plaintiff in alighting from the car, if reason-ligence had been given in the general charge. ably safe and proper appliances were supplied, so that she could with reasonable care have safely alighted therefrom."

If the platform or depot ground at Taylor, at the time of the injury received by plaint iff, and the stepping stool on which she alighted had been in daily use for years, and had proved adequate and safe for receiving and delivering passengers, then defendants could use the same without the imputation of negligence; and, if you so find the facts, you will find for defendants."

It may be conceded that if appellants had had a proper platform at the station, upon which the passengers could have alighted, their duty as to this matter would have been discharged, and that they were not called upon to render personal assistance. But we think, in order for them to claim immunity for the failure in this particular, and for the use of an appliance less safe, it was their duty at least to render such assistance to passengers as to make the use of the stool as safe as a platform would have been. From what we have already said, it is obvious |

A proper instruction upon contributory negThis, counsel for appellants admits in his brief, There is no middle ground. If plaintiff exercised due care in stepping upon the box and she was thrown down and injured, it follows that it was not the best appliance that could have been used to insure the safety of passengers in descending from the cars, and the companies were guilty of negligence. If there had been a platform, the accident could not have happened. There was negligence either upon the one side or the other, and hence there was no evidence upon which to base a theory of pure accident.

The whole case comes to this: that if the plaintiff's own negligence did not contribute to the injury (upon which the jury were fairly and pointedly instructed), upon the undisputed facts in evidence, the appellants are responsible for the injury. Even if it had been proved that assistance was rendered to plaintiff in descending from the car, it would but have shown that despite the help the stool was still unsafe. We find no error in the judgment, and it is affirmed.

MASSACHUSETTS SUPREME JUDICIAL COURT.

Adelbert E. CLAFLIN

v.

William CLAFLIN et al., Trustees.

(....Mass.....)

The provisions of a will which postpone the payment of one installment of a legacy to testator's son until he is twenty-five years old,

and another installment until he is thirty years old, are not void as inconsistent with his absolute rights of property therein or as against public policy.

(March 2, 1889.)

ON appaltiore brought against the trus

tees under the will of Wilbur F. Claflin, deceased, to require them to pay the complainant a legacy given him by said will. The cause was heard in the Supreme Judicial Court, Suffolk County, before W. Allen, J., and from a decree dismissing the bill complainant appeals.

The facts sufficiently appear in the opinion. Messrs. S. N. Aldrich and E. G. McInnes, for appellant:

Merely deferring payment did not make the gift in any way contingent on the devisee living until the time fixed for the payment.

Boraston's Case, 3 Coke, 19; Goodtitle v. Whitby, 1 Burr. 228; Doe v. Lea, 3 T. R. 41; Fuller v. Winthrop, 3 Allen, 51; Eldridge v. Eldridge, 9 Cush. 516; Goddard v. Johnson, 14 Pick. 352; Furness v. Fox, 1 Cush. 134; Holden v. Blaney, 119 Mass. 421; Poor v. Considine, 73 U. S. 6 Wall. 458 (18 L. ed. 869); Cropley v. Cooper, 86 U. S. 19 Wall. 167 (22 L. ed. 109). He would be entitled to the income.

Eliott v. Sparrell, 114 Mass. 404; Wright v. White, 136 Mass. 470.

twenty-one years old when his father died; but he some time ago reached that age and received $10,000 from the trust. He has not yet reached the age of twenty-five years, and he brings this bill to compel the trustees to pay to him the remainder of the trust fund. His contention is, in effect, that the provisions of the will postponing the payment of the money beyond the time when he is twenty-one years old are void. There is no doubt that his interest in the trust fund is vested and absolute, and that no other person has any interest in it; and the authority is undisputed that the provisions postponing payment to him until some time after he reaches the age of twenty-one years would be treated as void by those courts which hold that restrictions against the alienation of absolute interests in the income of trust property are void. There has indeed been no decision of this question in England by the House of Lords, and but one by a Chancellor; but there are several Saunders v. Vautier, 4 Beav. 115; S. C. on decisions to this effect by Masters of the Rolls appeal, 1 Craig & P. 240; Rocke v. Rocke, 9 and by Vice-Chancellors. The cases are colBeav. 66: Josselyn v. Josselyn, 9 Sim. 63; lected in Gray's Restraints on Alienation, Jackson v. Marjoribanks, 12 Sim. 93; Croxton v. SS 106-112, and Appendix II. See Josselyn v. May, L. R. 9 Ch. Div. 388; Magrath v. More Josselyn, 9 Sim. 63; Saunders v. Vautier, 4 head, L. R. 12 Eq. 491; Gosling v. Gosling, Beav. 115; S. C. on appeal, 1 Craig & P. 240; Johns. (Eng.) 265; Re Jacob's Will, 29 Beav. Rocke v. Rocke, 9 Beav. 66; Re Young's Settle402. See Sanford v. Lackland, 2 Dill. 6; Og-ment, 18 Beav. 199; Re Jacob's Will, 29 Beav. den's App. 70 Pa. 501; Earp's App. 75 Pa. 119: Ashhurst's App. 77 Pa. 464; Williams' App. 83 Pa. 377; Smith v. Starr, 3 Whart. 66; Keyser's App. 57 Pa. 236.

We have, then, a case where the trust is simply to hold the estate for the beneficiary and then pay the entire fund over to him, without the possibility of any other person having any interest in it whatever, and the cestui que trust is entitled to the control of the fund without the intervention of trustees.

That it is not a conclusive answer to a claim for possession that the testator evidently did not intend that the trust should be then terminated, is sufficiently shown by-

Sears v. Choate, 5 New Eng. Rep. 902, 146 Mass. 395; Smith v. Harrington, 4 Allen, 566, 569; Bowditch v. Andrew, 8 Allen, 339, 341; Sparhawk v. Cloon, 125 Mass. 265; Inches v. Hill, 106 Mass. 575; Stone, Petitioner, 138 Mass. 476; Underwood v. Boston Sav. Bank, 2 New Eng. Rep. 80, 141 Mass. 305.

Mr. Henry Baldwin, for appellees: A trust created by will cannot be terminated until the purposes for which it was made have been accomplished, the interests created under it have all vested, the parties request it, and the trustee consents.

Smith v. Harrington, 4 Allen, 566-568; Bowditch v. Andrew, 8 Allen, 339; Inches v. Hill, 106 Mass. 575; Sears v. Choate, 5 New Eng. Rep. 902, 146 Mass. 395–398.

When the intention of the testator is manifest there is no room for construction.

Bunting v. Tucker, 2 Gray, 319-321.

Field, J., delivered the opinion of the court: By the 11th article of his will, as modified by a codicil, Wilbur F. Claflin gave all the residue of his personal estate to trustees "to sell and dispose of the same and to pay to my wife, Mary A. Claflin, one third part of the proceeds thereof, and to pay to my son Clarence A. Claflin one third part of the proceeds thereof, and to pay the remaining one third part thereof to my son Adelbert E. Claflin in the manner following, viz.: $10,000 when he is of the age of twenty-one years; $10,000 when he is of the age of twenty-five years; and the balance when he is of the age of thirty years."

Apparently, Adelbert E. Claflin was not quite

402; Gosling v. Gosling, Johns. (Eng.) 265; Turnage v. Greene, 2 Jones, Eq. 63; Battle v. Petway, 5 Ired. L. 576.

These decisions do not proceed on the ground that it was the intention of the testator that the property should be conveyed to the beneficiary on his reaching the age of twenty-one years, because in each case it was clear that such was not his intention, but on the ground that the direction to withhold the possession of the property from the beneficiary after he reached his majority was inconsistent with the absolute rights of property given him by the will. This court has ordered trust property conveyed by the trustee to the beneficiary when there was a dry trust, or when the purposes of the trust had been accomplished, or when no good reason was shown why the trust should continue, and all the persons interested in it were sui juris and desired that it be terminated; but we have found no expression of any opinion in our reports that provisions requiring a trustee to hold and manage the trust property until the beneficiary reached an age beyond that of twenty-one years are void if the interest of the beneficiary is vested and absolute. See Smith v. Harrington, 4 Allen, 566: Bowditch v. Andrew, 8 Allen, 339; Russell v. Grinnell, 105 Mass. 425; Inches v. Hill, 106 Mass. 575; Sears v. Choate, 5 New Eng. Rep. 902, 146 Mass. 395. This is not a dry trust, nor have the purposes of the trust been accomplished if the intention of the testator is to be carried out.

"Where prop

In Sears v. Choate it is said: erty is given to certain persons for their benefit, and in such a manner that no other person has or can have any interest in it, they are in effect the absolute owners of it; and it is reasonable and just that they should have the control and disposal of it unless some good cause appears to the contrary."

In that case the plaintiff was the absolute owner of the whole property subject to an annuity of $10,000 payable to himself. The