I am forced to dissent from the opinion of the majority that an order should be entered directing a judgment for the defendant. To justify such an order, it must clearly appear that there is no legal evidence in the case tending to show that the defendant was guilty of negligence and that the plaintiff was in the exercise of due care. The majority appears to base its decision principally upon what it finds to be the negligence of the plaintiff. It does not expressly declare that the defendant should be found free from negligence as a matter of law, but in the discussion of that question the opinion appears so to hold in the finding that the rule in question was merely *Page 206 an operating rule which the defendant might abrogate at pleasure without notice to the public; and that the existence of the fence in question between the tracks was sufficiently brought to the attention of the public and of this plaintiff by its presence there.
I am of the opinion that there was evidence in the case which should have been submitted to the jury upon the question of the defendant's negligence. The plaintiff had come upon the station premises provided with a ticket to be used upon the train standing in the station. In legal effect he had thus been accepted by the defendant as a passenger and was entitled to receive from the defendant the highest degree of care for his safety. This court, in Boss v. Providence and WorcesterR.R. Co., 15 R.I. 149, said: "In regard to the degree of care which the law imposes upon common carriers of passengers, it is settled, by a long and uninterrupted line of adjudications, that they are bound to exercise the utmost care and skill which prudent men would use under similar circumstances; and that they are liable for injuries resulting from even the slightest negligence on the part of themselves or their servants."
The circumstance that a railroad company permits one of its trains to pass through a station while another train is standing upon an adjoining track in the station for the purpose of permitting passengers to enter and leave the latter train always presents the question whether the company has used care commensurate with its duty in guarding its patrons and in warning them of possible danger; and if there is any legal evidence upon which a reasonable mind could find that the railroad company had neglected said duty of guarding and warning its passengers the question of the defendant's negligence should be submitted to the jury. The defendant claims that it had taken proper means to warn the public and the plaintiff by placing a fence between the two tracks. To this claim the plaintiff replies that whatever else may be said of said fence, as not constituting sufficient notice to the plaintiff, it was entirely ineffective *Page 207 for that purpose in the evening when this accident occurred. The act of a railroad company in sending a train through a station while a passenger train is receiving and discharging passengers thereat has been frequently considered by courts and invariably held to be evidence of negligence. In C. A.R.R. Co. v.Kelly, 182 Ill. 267, the court held such act to be so plainly negligent as not to require comment.
In the case at bar it appeared that for at least thirty years previous to about a month before this accident, there had been a rule of the defendant and its predecessors in the use of the Pawtucket station, made for the direction of their employees, that when a train was standing at said station receiving or discharging passengers, a train approaching the station on the other track should come to a full stop and remain standing until the first train had drawn out of the station; and further, that said defendant and its predecessors had during all that time permitted passengers to leave and enter trains at the station to and from the platforms on either side of its tracks and to freely cross its tracks for that purpose. This rule and this method of conducting its business was well known to persons using said station as passengers of the defendant and was well known to the plaintiff. The majority opinion appears to adopt the defendant's contention that this rule and practice was an operating rule only and one on which the public could not rely, and because of that fact no notice to the public was necessary when the rule was changed. It may be termed an operating rule, but it was one made not for the convenience of the defendant, but for the safety of its passengers. It had been in operation for many years to the knowledge of the public of Pawtucket, and about it had grown up a custom on the part of said public which was well known to the defendant. Any change in said operating rule without proper notice to passengers using its station would be likely to result in injury to some one. It cannot be said as a matter of law that the defendant could without negligence on its part abrogate said rule so necessary to the safety of the public without *Page 208 ample notice to those to whom it owed the highest degree of care. The only notice which the defendant had given was the erection of the fence between the tracks; from the presence of this fence it claims that the public might infer that thereafter it would change its former rule. It was clearly a question of fact to be submitted to the jury whether the fence constituted sufficient notice of the change of rule. It would not amount to notice if it was not plainly to be seen by a person about to cross the tracks. In regard to whether said fence was sufficiently prominent at night to amount to a warning I think the majority opinion has overlooked an important rule. In considering whether it will order the entry of judgment contrary to a verdict the court should not pass on the preponderance of the evidence but on all points the evidence should be viewed in its aspect most favorable to the party having the verdict.
There was testimony from which the jury might find that this fence was about four feet and eight inches high; that it was made of iron wire about one half inch in diameter; that it was painted a dark color similar to the color of the coaches of the defendant's passenger trains; that when a train was standing on the north track at the station said fence was very near to it; that in the evening said fence had no lights upon it; that as a train stood upon the north track near it, a person crossing the south track towards it could not easily distinguish it as an object distinct from the train, in the shadow of which it stood; that when it was shaded from the lights of the station by a train on the north track insufficient light was thrown upon it from the lights under the hood of the south platform or from any other source to make it plainly describable. We gather from the opinion, that notwithstanding the above testimony the majority find that there was ample illumination of the fence at night to have it serve as a notice and a warning to this plaintiff before he left the south platform that the defendant had changed the method of conducting its business at the Pawtucket station. *Page 209
The majority opinion lays the greater stress upon its conclusion that the evidence shows the plaintiff to be guilty of contributory negligence as a matter of law, in stepping from the south platform and crossing the south track, when he had observed a train upon that track west of the station. It dismisses as untenable the plaintiff's claim that the question should have been submitted to the jury as to whether the plaintiff was entitled to rely upon the rule above referred to and upon the duty of the defendant to use a high degree of care for his safety. The majority makes much of the circumstance that the gates at the Broad Street crossing were down, holding that this fact indicated that the defendant was about to send the train, which struck the plaintiff, through the station, although the Providence bound train was standing there; and that the condition of the gates was notice to the plaintiff of that fact. There was ample evidence warranting the jury in finding otherwise. The Pawtucket station abuts on Broad Street and the crossing gates on the street are operated with reference to trains approaching the station, and also with reference to trains standing in the station. The gates would be down if the Providence train was standing in the station and no other train was near, or if the other train stopped and was held west of the station. The fact that the gates at Broad Street were down gave absolutely no information as to whether the approaching train was to stop west of Broad Street or was to pass through the station.
The jury might find in the conditions existing on the evening in question that the defendant had failed to bring to the knowledge of the plaintiff when he started to cross the track that the fence existed; and that by reason of the defendant's negligence in failing thus to warn the plaintiff, the situation as far as he was concerned at that time was that of a train standing at the station and taking on passengers, with the implied invitation from the defendant to the plaintiff to cross the south track and board it. It is true that the plaintiff had observed the other train west of Broad *Page 210 Street approaching, but slowing down and the jury might find from some of the evidence that it came to a full stop. The jury might also find that the plaintiff, relying on the implied invitation of the defendant to cross the track to his train, believed, and was justified in believing, that the other train would remain west of Broad Street in accordance with the rule of the company, which he knew to have been long in force. It was a question for the jury whether in all the circumstances the plaintiff was justified in relying upon the assumption that the defendant would observe its duty to use a high degree of care towards him and would not disregard its long continued practice.
In Terry v. Jewett, 78 N.Y. 338, the court said: "The charge that the deceased had a right to assume that the defendant would run its train in a lawful manner, and to act accordingly, was also correct. She had no ground for supposing otherwise than that due care and caution would be observed in caring for the passengers on the road, while passing from the depot to the cars; and such a conclusion was fully warranted."
The majority opinion quotes at considerable length from the case of Chaffee v. Old Colony R.R. Co., 17 R.I. 658, as an authority in support of its position. That case if carefully considered is clearly an authority against it. The Chaffee case was decided in 1892, and it appears that at that time the same rule was in force at the Pawtucket station that was in force just before the building of said fence. In that case it appeared that the plaintiff's husband was killed at the Pawtucket station by an incoming train while he was attempting to board a train which had been standing at said station, but was then moving out of it. The point under discussion and decided in that case was that boarding or attempting to board a moving railroad train is an improper and dangerous act and that the plaintiff's husband in attempting to do so was guilty of contributory negligence. No such circumstance is involved in the case at bar. The plaintiff here was moving across the track to board a train which was *Page 211 standing still. But the opinion in the Chaffee case does enunciate one principle of law, overlooked by the majority, which has a vital bearing on the case before us. In speaking of the duty generally imposed upon a person about to cross a railroad track to look both ways before doing so the court says: "It is true the rule is subject to exceptions, and one of these is when it is necessary for a passenger going to or alighting from a train to cross a track to reach the train or station. This exception rests upon the implied invitation of the company to cross its track, and its implied assurance that the passenger may safely do so. But such implied invitation and assurance continue only so long as the train is stopped at the station for the purpose of receiving passengers and allowing them to alight. When a reasonable time for this purpose has been given, and the train has started on its way, such implied invitation and assurance are at an end, and the obligation to look both ways before crossing the track revives." That is undoubtedly a correct statement of the law, as it exists in this State and in most other states, and should be thus applied to the circumstances of this case. The train which the plaintiff desired to board as a passenger was standing at the station, he was approaching it from the place whence for over thirty years a great part of the passengers from Pawtucket to Providence had proceeded to board their trains, viz.: across the other track. He had, in the language of theChaffee case, "the implied invitation of the company to cross its tracks and its implied assurance that the passenger may safely do so," unless the defendant had by some sufficient notice brought it to the plaintiff's knowledge that said implied invitation had been withdrawn and he could no longer rely upon the implied assurance of safety. The opinion also cites three Massachusetts cases where an entirely different doctrine as to implied invitation and assurance of safety is announced from the one adopted by this court and the courts of most other jurisdictions. The majority opinion also cites three other cases which deal, not with circumstances of passengers *Page 212 at stations passing over tracks to and from their trains, but of others not passengers who either on foot or in wagons have gone onto railroad tracks at highway crossings. This court in Boss v. Providence and Worcester R.R. Co., 15 R.I. 149, in speaking of the cases of persons injured who were not passengers, but simply travelers in the act of crossing or walking upon the railroad track, said: "But, as a very different rule of responsibility obtains where an accident occurs during the existence of the relation of passengers and common carriers from that which obtains under the former circumstances, we do not think that these cases have much bearing upon the one under consideration."
In Terry v. Jewett, 78 N.Y. 338, the court said: "The rule is well settled that a traveler crossing a railroad track on a public highway is bound to use his eyes and ears to ascertain whether a train is approaching; but this rule has not been held in this State to apply to passengers who are crossing a track at a station to get on a train. There is a difference between the care and caution demanded in crossing a railroad track on a highway and in crossing while at a depot of a railroad company to reach the cars."
In Beecher v. Long Island R.R. Co., 161 N.Y. 225, the court, speaking through Parker, C.J., said: "The jury were at liberty to find from the evidence before it that the defendant had started the train on the south track substantially every morning for many years, and that during all that period of time, upon the announcement by the doorman of `the rapid transit for Brooklyn,' the people were accustomed to rush out of the station, over the station platform to the north tracks, then across them to and upon the platform, in readiness to board the train as soon as it came to a stop; and that this custom had been so long continued that such an announcement by the doorman on the morning in question, constituted an invitation to every passenger there, including the plaintiff's testator, to pass out of the station, across the station platform, then over the north tracks and to the platform of the south track, with *Page 213 the assurance that the way was not only free from obstructions, but would remain so for such a reasonable time as would enable them to pass to the train in safety, and, therefore, it was for the jury to say whether in accepting that invitation and proceeding as plaintiff's testator did, without looking and listening, and in the manner described by the witnesses, he was nevertheless exercising that reasonable care and caution which the situation demanded."
In Grand Rapids, c. Co. v. Cox, 8 Ind. App. 29, the court said: "From these authorities it is plain that our court has repeatedly recognized the existence of the exception to the general rule, and that where the traveler is deceived and thrown off his guard by the conduct and fault of the company, he may be deemed to have been in the exercise of proper care without taking all the precautions which would otherwise be required."
As the jury were at liberty to find that the defendant, on the night in question, had given no adequate notice of a change of conditions the question of the plaintiff's negligence in crossing the track without again looking down the track is not one of law, but of fact for the jury. In Chicago, c. R.R. Co. v. Jennings, 89 Ill. App. 335, the court said: "It seems to us impossible that there should be a rule of law as to what particular thing a person is bound to do for his protection in the diversity of cases that constantly arise, and the question what a reasonably prudent person would do for his own safety under the circumstances must be left to the jury as one of fact."
In Redhing v. Central R. Co., 68 N.J.L. 641, the court held: "It is a settled rule in this State that when the position of the station and tracks of a railroad company is such that passengers about to take or leave a train standing at the station must cross intervening tracks, it is negligence in the company to run cars over these tracks, and that it is a question for the jury whether a passenger, who attempts to cross those tracks without looking for approaching cars, is guilty of negligence." *Page 214
The court said in North Chicago, c. Co. v. Irwin,202 Ill. 345: "But whether he (plaintiff) had the right to rely solely upon his knowledge of the custom and to omit other precautions, and yet be deemed in the exercise of ordinary care, was a question of fact, to be determined by the jury upon consideration of all the testimony bearing upon the point."
In Sorenson v. Ill. Central, 155 Ill. App. 606, the court held: "What is due care depends upon environing conditions and sometimes involves custom and knowledge actual or attributable to one or the other of the parties. Therefore in the instant case it was for the jury, in determining the question of due care on the part of the plaintiff, to take into consideration his knowledge of defendant's custom in operating its trains upon certain tracks, and whether in relying thereon he was injured, or that in failing to take other precautions for his safety negligence was imputable to him."
It is a question for the jury in this case whether the act of the plaintiff in crossing the track was the proximate cause of the accident. He had safely crossed the track and was within arm's length of the fence when he first saw it, although he had been looking directly at it. After that he had time to turn and recross the track before he was struck by the engine on the other side of the track. But for the presence of the fence which the jury might find was being negligently maintained by the defendant he would have passed in safety.
In the recent case of Canham v. Rhode Island Company,35 R.I. 177, the plaintiff's intestate with two companions was standing on the platform of the defendant's station at Silver Hook, situated on its private right of way, when the car that the deceased desired to take appeared around a curve about 200 yards north of the station proceeding at a high rate of speed. While his companions signalled for the car to stop the deceased stepped from the platform on which he was standing and proceeded to cross the intervening tracks towards the platform on the other side of the track, from which platform he must board said car. While crossing *Page 215 the track on which the car was approaching the intestate was struck and killed by said car which did not stop at the station. Although the court did not announce that as the reason of its decision, it applied a rule more liberal to the plaintiff than that laid down in the Chaffee case, supra. For the court must have held it to be a question for the jury whether there was an implied invitation of the defendant for said intestate to cross the track at the station and an implied assurance of safety from the car which was approaching and which should have stopped upon the signal of the intestate and his companions. The court said: "It is sufficient to say that, in our opinion, the record as it stands does not conclusively show, as a matter of law, that the deceased was guilty of contributory negligence which was the proximate cause of his death." The leading case in this State ofBoss v. Providence and Worcester R.R. Co., 15 R.I. 149, also involved an accident near the Pawtucket station. The train on which the plaintiff was riding approached the station from the west and stopped west of the Broad Street crossing, because there was a train then passing through the station. Said plaintiff, thinking that the train had reached the station, alighted from his car and was crossing the other track, apparently without looking both ways, when he was struck by the train that had been coming through station. The court said: "And the same is true with regard to contributory negligence on the part of the plaintiff. And although there are cases in which, the facts being undisputed, and being decisive of the case, it becomes the duty of the court to decide as matter of law upon the question of negligence, yet it is only in those cases where the question of fact is entirely free from doubt, and where only one conclusion can be fairly arrived at therefrom, that the court has the right to thus apply the law without the action of the jury." The court quoted with approval the following: "When, from the circumstances shown, inferences are to be drawn which are not certain and incontrovertible, and may be differently made by different minds, it is for the jury to make them; that is to say, when *Page 216 the process is to be had at a trial of ascertaining whether one fact had being from the existence of another fact, it is for the jury to go through with that process." The court finally said: "As to the claim made by the defendant that the accident resulted from the plaintiff's carelessness, it seems to us that the only reply which the court need make is, that while unquestionably there was evidence tending to prove this, yet it was for the jury to say whether it was proved as matter of fact under the law as given by the court; in other words, that the evidence of carelessness on his part is not so conclusive and free from doubt as to warrant the court in deciding as a matter of law that he was guilty of contributory negligence."
From a careful consideration of all the testimony in the light of the great weight of authority, I am of the opinion that the court cannot say, in the case at bar, as a matter of law, either that the defendant was free from negligence or that the plaintiff was guilty of contributory negligence.