(dissenting). — I dissent from the conclusion reached by the majority of the court in this case.
Briefly stated, testimony as to the following facts appears in the record. The appellant was a passenger upon one of respondent’s trains, making the trip from Portland, Oregon, to Seattle, Washington. The trains of respondent between Portland and Seattle are transferred across the Columbia river upon a large ferry boat. Coming from Portland this boat starts at Goble, on the Oregon side of the river, and lands at Kalama, on the Washington side. Three sets of tracks are arranged upon the boat and, by means of pontoon approaches, the engines and cars of the trains are run upon these tracks and drawn from the boat to the shore in the same manner. The trains are usually separated into sections, which are placed upon the tracks aforesaid. At one end of the boat is a lunch room, which, upon the occasion in question, was toward the Oregon shore. Appellant inquired of some employe upon the train if he would have time to get breakfast in the lunch room. He was informed that he would have sufficient time. The usual time consumed in crossing the river is about twenty minutes. Appellant thereupon left his car, went to the lunch room and ordered some breakfast. He testified that, before he had finished eating, the bell rang, and that the man in charge of the lunch room said: “You better hurry up. The train will pull out and leave you.” That he thereupon quit eating immediately, paid for his meal, and walked out; that as he went out the train was moving away, and he *235started to catch it; that he jumped on to the step of the last car; that, while holding to the railing, he got one foot on, and stepped up to, the second step, and as he did so the train gave a sudden lurch or jerk, by which he was overbalanced and thrown against a piling, or some timber placed in the boat.
After he was struck he says he does not remember what occurred. Other testimony shows that he was thrown off the boat, and fell upon some timbers resting upon the water below. He was taken up and left at Kalama in charge of a physician. The accident happened on the 13th of January, and he says he did not recover consciousness until the 1st of February following. He testified, that he believed it was his train which he saw moving out; that the person in charge of the restaurant told him it was, and that he had to catch it to go through; that he had no trouble in getting on, but, by the sudden lurch of the train, he was thrown against the timber aforesaid.
It appeared in evidence that the car in which appellant had been riding was not in the section of cars which he saw moving, but it was still standing upon another track on the boat. He testified, however, that he saw no one to give him warning, and that no one did so except the man at the restaurant, who told him his train was leaving and he would have to catGh it. Another witness testified that he was an employe of respondent, and that he was at the time stationed upon the boat; that it was his duty to warn passengers against danger, and that he did warn the appellant. From his testimony the warning which he says he gave must have been given as appellant was about in the act of getting upon the steps. He says that after he gave the warning he turned away and did not look further after appellant. It was testified that the *236lurch of the train was necessary in its operation at that place, by reason of ascending the incline leading from the boat to the shore. It was also testified that the timber, against which appellant was thrown, was about twenty-six inches from the steps of the car, and that it was a necessary timber for the operation of the boat as constructed. The foregoing is a substantial statement of the material testimony that may be said to relate to the question of negligence on the part of respondent. The court denied the challenge to appellant’s evidence, and afterwards submitted the case to the jury, evidently believing at the time that sufficient evidence of negligence had appeared to require its submission. Upon motion for new trial the court-, however, concluded that negligence had not been shown.
It may well be said that the conditions surrotmding appellant at the time of the accident were not ordinary. It is not usual to transfer trains of cars across streams in the manner described. The method used is doubtless reasonably safe, and no criticism is to be lodged against respondent for adopting such method. But the method required the separation of the cars of the train into sections. These were placed upon different tracks, and were necessarily moved at different times. It was also necessary to pull them up the incline from the boat to the shore, thus involving the application, suddenly or otherwise, of the required power to effect the ascent It is manifest that, under such circumstances, a high degree of care was required of respondent, both in the construction and operation of its boat, in the movement of its cars, and in guarding its passengers against confusion and danger. If passengers were permitted to leave the ears at all, the duty rested upon respondent to see that they *237were warned against danger, and so informed as to train movements that they need not become confused thereby.
Ho restrictions seem to have been placed upon passengers leaving the cars. The porter of the rear car, called the observation car, testified that the rear platform thexm of was surrounded by an inclosed railing, with a gateway opening through it; that he opened the gateway when upon the boat, and that a number of passengers went out upon the boat, and returned to the cars by the same way. He says when the train started he closed this gateway, so that no one could have entered the car from that way afterward. This was the car which appellant attempted to enter, and by way of this platform. Appellant testified that, when he jumped upon the steps, the way to the platform was open so that he could have entered. This fact is in dispute between the porter and appellant. But, be that as it may, it appears in any event that a number of passengers, including appellant, were out of the cars and moving about the boat. Passengers thus permitted upon the boat were under the special care of respondent, and were entitled to reasonable warning of liabilty of danger, and against the probability of confusion by train movements. Appellant says that he received no warning, and saw no one there to give it. This testimony, if true, I think under all the circumstances showed at least some negligence upon respondent’s part. It is true, as stated, that a witness for respondent testified that he gave appellant warning, but that made the matter of warning merely a disputed fact, which it was the jury’s province to determine.
Again, while it was testified that the upright timber which appellant struck was necessary for the operation of the boat as constructed, yet it became a question whether *238its location so near the side of the cars was necessary and proper, in view of the apparently necessary lurching of the train as it passed that point. It has been often held that it is not necessarily negligence per se for one to get aboard a slowly moving train, the fact of negligence depending upon the circumstances of each particular case. Respondent was therefore bound to take notice that, in the absence of proper care or warning, passengers might attempt to get aboard slowly moving cars at or about the point in question, and might possibly, by the necessary lurch of the train, he thrown in contact with the timber only twenty-sis inches in the clear from the cars. I think all these circumstances, bearing upon the question of respondent’s negligence, were at least sufficient to call for their submission to the jury.
It is said in the briefs that the court was mainly influenced in its ruling on the motion for a new trial, by the decision of this court in Blakney v. Seattle Electric Co., 28 Wash. 607, 68 Pac. 1037. The negligence alleged in that case was the sudden lurch of a street car, by which the respondent claimed she was thrown to the ground while in the act of getting off the ear. The evidence, uncontradicted in the record, showed that the respondent did not fall at a street crossing, hut at a point near the middle of a block, while she was attempting to step off the car. She did not notify the conductor, who was busy collecting fares, that she desired to leave the car, but she went to the rear platform for the purpose of getting off. She admitted that she was preparing to alight when she fell, and claimed that a sudden lurch of the car caused her to fall. She was in the act of getting off while the car was in motion, and at a place where it did not usually stop, without any notice to the operator's of the car that *239she desired, or was attempting, to do so. Witnesses called by the respondent herself testified that there was no jerk of the car; but that the car, already in motion, simply increased its speed while the respondent was in the act of stepping off about the middle of a block. The court held that it was not negligence per se to increase the speed of the car, and that it was not negligence to do so when a passenger was in the act of alighting unless the car company knew, or by the exercise of reasonable diligence could have known, of that circumstance.
I do not think that the circumstances of that case are similar to those in the one at bar. The accident occurred at a place where the car company could not reasonably have expected that a passenger would attempt to alight without notice to that effect. It was at a place where the car was properly proceeding on its course, and the company had a right to increase the speed under those circumstances. In the case at bar, however, the passenger was attempting to board a train at a place where it was just starting. Other passengers had gone outside of the cars and returned. The testimony of the porter showed that this was a common occurrence. Respondent must have known that those who had been permitted to leave the cars would expect to return when the train was ready to move. It must have known that, if it permitted its passengers to go out upon the boat, the necessary and reasonable information, warning, and facilities for their safe and timely return should be provided, and those in accordance with the peculiar nature of the surroundings and possibility of attendant danger. Respondent was also chargeable with knowledge of all the conditions, appliances, and surroundings attending the movement of the train at that time and place, and the possibility of acci*240dents happening to passengers returning to the cars. It was therefore for the jury to say whether due care was exercised at that time and place, whether there was lack of proper care in placing the timber so near the cars, particularly when the lurch of the train was necessary as it passed that point, and whether these, conspiring together, were the proximate cause of appellant’s injury.
“It is well settled that where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law but of fact and to be settled by a jury; and this whether the uncertainty arises from a conflict in the testimony or because the facts being undisputed fair-minded men will honestly draw different conclusions from them.” Richmond etc. Co. v. Powers, 149 U. S. 43, 45, 13 Sup. Ct. 748, 37 L. Ed. 642.
See, also, Lane v. Spokane Falls etc. R. Co., 21 Wash. 119, 57 Pac. 367, 46 L. R. A. 153, 75 Am. St. 821. As based particularly upon facts somewhat similar to those here involved, and where the question of negligence was held to be for the jury, see North Chicago etc. Co. v. Williams, 140 Ill. 275, 29 N. E. 672; Anderson v. Railway Co., 42 Ore. 505, 71 Pac. 659; Kulman v. Erie R. Co., 65 N. J. L. 241, 47 Atl. 497; 5 Am. & Eng. Enc. Law (2d ed.), 581.
I believe the court’s first impression of the evidence in this case was the correct one, within the rules governing the facts which are for the jury. I therefore think the verdict should not have been set aside on the ground that there was no evidence of negligence on respondent’s part.
Dunbar, J., concurs with Haitley, J.