Schiffler vs. The Chicago & Northwestern R. Co. Action for personal injury. The complaint alleges that the plaintiff is an infant under the age of twenty-one years,at the time of the injuries complained of, of the age of seventeen years; that plaintiff entered one of defendant's passenger trains at the city of Milwaukee for the purpose of taking passage thereon to the station of Jackson, in this state; that he failed to get a ticket before entering upon the train, because he was late at the train; that after the train was in motion the conductor of the train informed the plaintiff that that train did not stop at Jackson, but received his proper fare, and promised that the train would slacken its speed, without coming to a full stop, so that the plaintiff might alight therefrom at Jackson, and took and kept the fare as aforesaid of the plaintiff from Milwaukee to Jackson; "that the plaintiff had several times before August 17, 1895, paid a like fare and obtained carriage as a passenger from Milwaukee to said Jackson, and in each of said cases the train of the defendant was properly stopped at Jackson long enough for the plaintiff to alight therefrom;" that theplaintiff was "young and inexperienced, and without knowledge of such danger or appreciation of such risk” as was consequent upon an attempt to alight from a moving train; that "the plaintiff, in obedience to such suggestion of the conductor, went upon the platform of one of the coaches, and prepared to alight therefrom as soon as said train slackened its speed for that purpose, and that about the time of reaching the platform of said station at Jackson said train began to slacken its speed, and the plaintiff waited upon said platform until the train had traveled quite a distance past said station, and, believing that the speed of said train was sufficiently slackened to permit the plaintiff to alight in safety, relying on the statement of the conductor as aforesaid, the plaintiff attempted to alight from said moving train," and was injured in the manner specifically alleged in the complaint; that the conductor "carelessly and negli Schiffler vs. The Chicago & Northwestern R. Co. gently neglected to stop said train long enough to permit the said plaintiff to alight therefrom at Jackson, and carelessly and negligently caused said train to be run by and past the said station called Jackson, and by and past the point where the plaintiff was to alight therefrom as aforesaid, at such a rapid rate of speed that injury was reasonably certain to result therefrom to any one attempting to alight from said moving 'train." The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. From an order sustaining the demurrer, the plaintiff brings this appeal. For the appellant there was a brief signed by Timlin & Glicksman and E. A. Conway, counsel, and oral argument by W. H. Timlin. They contended, inter alia, that the defendant through its servants received the plaintiff as a passenger and kept the fare offered by him for his passage. Having done this a duty arose on the part of the defendant to properly and safely carry plaintiff and to set him down at the place of destination in safety, for a carrier of passengers is required to exercise the utmost care "which can be exercised under all the circumstances, short of a warranty of the safety of passengers." " Delamatyr v. M. & P. du C. R. Co. 24 Wis. 578; Curtis v. D. & M. R. Co. 27 id. 158; Hartwig v. C. & N. W. R. Co. 49 id. 358; Ft. Worth & D. C. R. Co. v. Kennedy, 12 Tex. Civ. App. 654. The negligence of the conductor in failing to provide for the safety of the plaintiff was the negligence of the defendant, for the whole power of the corporation pro hac vice is vested in him, and as to passengers of the train he is to be considered as the corporation itself. Craker v. C. & N. W. R. Co. 36 Wis. 657; Bass v. C. & N. W. R. Co. id. 450, 463; Great Western R. Co. v. Miller, 19 Mich. 305; Rauch v. Lloyd, 31 Pa. St. 358. Whether plaintiff, when informed by the conductor that the train would not stop at his destination, was Schiffler vs. The Chicago & Northwestern R. Co. guilty of contributory negligence in leaping off while it was in motion, was a question for the jury. Missouri, K. & T. R. Co. v. Meyers, 35 S. W. Rep. 421; Cincinnati, H. & I. R. Co. v. Revalee, 46 N. E. Rep. 352; Filer v. N. Y. C. R. Co. 49 N. Y. 47; McIntyre v. N. Y. C. R. Co. 37 id. 287; Cincinnati, H. & I. R. Co. v. Carper, 112 Ind. 26; Watkins v. R. & A. A. L. R. Co. 116 N. C. 961; Gulf, C. & S. F. R. Co. v. Brown, 4 Tex. Civ. App. 435; Carr v. E. R. & E. R. Co. 98 Cal. 366. An attempt to leave a moving train does not show negligence per se. Louisville & N. R. Co. v. Crunk, 119 Ind. 542; Pennsylvania Co. v. Larion, 123 id. 415; Geiler v. Manhattan R. Co. 32 N. Y. Supp. 254; Atchison, T. & S. F. R. Co. v. Hughes, 55 Kan. 491; Hooks v. A. & V. R. Co. 73 Miss. 145; Wharton, Neg. § 380; Delaware & H. C. Co. v. Webster, 6 Atl. Rep. 841; St. Louis, 1. M. & S. R. Co. v. Person, 49 Ark. 182; Pool v. C., M. & St. P. R. Co. 53 Wis. 657, 660; 2 Wood, Railway Law, 1130–1132, 1136, 1148, 1149; 2 Abbott, Dig. Corp. 598; Eddy v. Wallace, 49 Fed. Rep. 801; Bucher v. N. Y. C. & H. R. R. Co. 98 N. Y. 128; Cousins v. L. S. & M. S. R. Co. 96 Mich. 386. For the respondent there was a brief by Fish & Cary, and oral argument by A. L. Cary. They argued, among other things, that where cars do not stop at their usual stopping place, and, to avoid being carried beyond his destination, a passenger, when the cars are in motion, jumps off and in doing so sustains an injury, he cannot recover. Wood, Railway Law, 1133, note 2; Id. 1136, note 3; Damont v. N. O. & C. R. Co. 9 La. Ann. 441; Railroad Co. v. Aspell, 23 Pa. St. 147; Ill. Cent. R. Co. v. Able, 59 Ill. 131; Gavett v. M. & L. R. Co. 16 Gray, 501; Jeffersonville R. Co. v. IIendricks' Adm'r, 26 Ind. 228; Jeffersonville R. Co. v. Swift, id. 459; Davis v. C. & N. W. R. Co. 18 Wis. 175. The complaint does not bring the case within the rule governing cases where a conductor or brakeman is present and advises or encourages a passenger to step or jump from a moving Schiffler vs. The Chicago & Northwestern R. Co. train, but is analogous to cases where a train does not stop at a station where it is scheduled to stop, or where the conductor has promised a passenger that the train will stop, and it does not come to a stop, and the passenger, to avoid being carried to the next station, jumps from the train while it is running at a high rate of speed and is injured. In such cases the railroad company is not liable. Detroit & M. R. R. Co. v. Curtis, 23 Wis. 152; Secor v. T. P. & W. R. Co. 10 Fed. Rep. 15; Hickey v. B. & L. R. Co. 14 Allen, 429; Kentucky C. R. Co. v. Thomas's Adm'r, 79 Ky. 160; Brown v. C., M. & St. P. R. Co. 80 Wis. 162; Ill. Cent. R. Co. v. Green, 81 Ill. 19; Pennsylvania R. Co. v. Zebe, 33 Pa. St. 318; Jarrett v. A. & W. P. R. Co. 83 Ga. 347; Watson v. G. P. R. Co. 81 id. 476; Chicago & A. R. Co. v. Randolph, 53 Ill. 510; Burden v. L. S. & M. S. R. Co. 104 Mich. 101; Lucas . N. B. & T. R. Co. 6 Gray, 64. NEWMAN, J. In order to state a cause of action against the defendant, the complaint must allege such facts as show that the defendant failed in the performance of some duty which it owed to the plaintiff, and that such neglect of duty caused the plaintiff's accident. It is claimed that, under the circumstances, the defendant owed to the plaintiff the duty to stop its train at Jackson, so as to permit him to alight there. But the plaintiff's presence upon the train without a ticket, and in ignorance of the regulation which prevented it to stop at Jackson, was not through any fault or inadvertence of the defendant. By inquiry at the station before entering upon the train, he would have learned of the regulation. It was his duty to ascertain this for himself, and to regulate his conduct accordingly. Even if he had bought a ticket at the station, that would not have put upon the defendant the duty to stop its train at Jackson contrary to its published schedule arrangements. Plott v. C. & N. W. R. Co. 63 Wis. 511. When he received the information that VOL. 96-10 Schiffler vs. The Chicago & Northwestern R. Co. the train would not stop at Jackson, it was too late to prevent a predicament. The train had left the station, and had entered upon its scheduled and advertised journey. Without important reason, it should not be hindered or delayed. The conductor's duty, in the circumstances, was not doubtful. On payment of the proper fare, it was to carry the plaintiff to such station near to Jackson as the plaintiff should choose, and at which the train was scheduled to stop. It was, no doubt, the conductor's duty to run the train according to the published schedule, and he had no power to bind the company by any change from such schedule. Nor was it within his apparent power to make such change. So the plaintiff had no right to infer that the conductor had any power to bind the company by a promise to stop or slow up at Jackson. Plott v. C. & N. W. R. Co., supra. From these considerations, it is plain that the defendant owed to the plaintiff no duty to stop the train at Jackson. So the failure to stop the train was no wrong of which he can complain. The only wrong which is plainly alleged in the complaint is the conductor's promise to slow up the train. The promise was one which he had no right either to make or to keep. It does not plainly appear whether he in fact kept the promise. It does appear that the train was somewhat slowed up. The plaintiff thought the promise was being kept. After he had been carried some distance by the station, and when it did not appear to be slowing up any more, he jumped. No one advised him that it was safe to jump. No one knew that he was about to jump. He jumped on his own judg ment that it was safe to do so. It was certainly a rash act, and its consequence to the plaintiff was serious. Nothing but his minority could relieve the plaintiff from responsibility for the act. If he had been four years older, there could be no question that he assumed and must bear the consequences of the act. But he was only seventeen years old. So great discretion cannot be required of him as if he had |