(dissenting). When this case was here on a former appeal (112 N. Y. 371), it was held that the plaintiff’s intestate was guilty of negligence, contributing to his death, because he attempted to board the train when running by the station at the rate of at least six miles per hour. As the case was then presented, the testimony conclusively established the fact that at the time when the train was passing the platform on which the deceased stood, it was running at that rate of speed at least, if not even more, blow, the case is here upon á very different state of facts. Upon the last trial, resulting in the judgment now under review, three witnesses called by the plaintiff testified that the train was running, at the time the deceased attempted to get on, at a rate of speed not-to exceed from one to'two miles per hour. One of these witnesses was the engineer who had charge of this very train when the accident happened, and another was the fireman. The defendant, on the first trial, gave no evidence in regard to the speed of the train, but on the last trial it called two witnesses, who testified that it was six or seven miles per hour. There were some facts and circumstances proven, bearing on the question of speed which could also have been considered by the jury, not the least important of which was the undisputed fact that, though the train was running upon a slippery track and a down grade, it was brought to a full stop within one hundred feet *25of the point where the deceased attempted to get on. In this conflict of testimony the case went to the jury and the verdict for the plaintiff must be taken by us as conclusively establishing the fact that the train was running at the rate of from one to two miles per hour. It is said that two of the plaintiffs’ witnesses testified on the first trial to a greater rate of speed than upon the last trial. That, if true, was a circumstance for the consideration of the jury in determining what weight the testsmony was entitled to, but it has no place in the consideration of this appeal. The only question that we have to deal with is whether the deceased, in attempting to board the train when going by the station platform at the rate of from one to two miles per hour, and having been invited by the conductor in charge of the train to “ jump on,” was guilty of negligence, as matter of law. It was a regular station on defendant’s road where its train stopped and where passengers got on and off. On this morning, however, it failed to stop. The plaintiffs’ intestate was on the platform waiting for the train which he intended to take as a passenger, and while so waiting for it to stop it proceeded slowly past the platform, .and when the rear car, which was the only passenger car on the train, had nearly reached the point where he was, the conductor, not intending to stop, invited him to get on and he attempted to do so and was killed. It is not the province of this court to •examine the evidence in order to form some theory as to the particular manner in which the deceased was killed. That was for the jury. We can only know from the findings below that the platform on which he stood was separated from the car into which he was invited by a space not more than six inches wide, that the iron railing on the part of the car through which he must pass was two feet and six inches wide and the platform of the car which he attempted to reach was but two feet higher than the place where he stood. The attempt of a passenger to board a train going at a very low rate of speed in this manner and under such circumstances is not in my opinion" such a reckless and dangerous act as to warrant any court in pronouncing it negligence$er se. It is at most an act in regard to which *26reasonable and prudent men may differ and, therefore, it is for the jury to determine its true character as a question of fact, under all the circumstances of the case. This rule was stated by Peckham, J., in his opinion in this very ease on the former appeal in this language: “ There may undoubtedly be circumstances under which an attempt to get on or off a moving train would not be regarded as negligence, as a matter of law and where the question of negligence under all the circumstances of the case should be submitted to the jury.” If this rule cannot properly be applied to a case like this, where the train upomthe finding.of the jury, was barely in motion, it cannot have any practical application to any case whatever. If it is correct to say that a passenger in attempting to board a train, moving at the rate of one to two miles per hour, under the conditions and circumstances appearing in this case, is guilty of negligence as matter of law, then the same result must follow in every case when the train is in motion at all. The act of alighting from a moving train is quite as dangerous as an attempt to board it while going at the same speed. The only difference is that there exists a stress of circumstances in the former case that does not exist in the latter. But the fact that there may be reasons for risking the danger in one case which do not exist in the other is not alone enough to change the question from one of fact to one of law.' This Court has held that a passenger who attempts to get off a slowly moving train by the invitation of a servant of the company is not as a matter of law, guilty of negligence. (Filer v. N. Y. C. R. R. Co., 49 N. Y. 47.)
In that case the danger of getting off was as great and even greater than would be an attempt to get on while the motion of the train was the same. The passenger could have remained on the train and suffered the inconvenience of being carried past her home, and in the case at bar the deceased could have waited for another train, but surely this difference in the circumstances cannot change what was held to be a question of fact in the former case into a question of law in this. The highest court in at least three of our sister states has passed *27upon this question, and in each case it has been held to be one of fact.
In Johnson v. West Chester & P. R. R. Co. (70 Penn. St. 357) a passenger attempted to hoard a train moving at from three to four miles per hour. There was no invitation to enter the car.- It was held that it was for the jury to say whether the danger of boarding the train when in motion was so apparent as to make it the duty of the passenger to desist from the attempt. Where the conductor failed to stop the train at the platform where the passengers landed and when the train was moving at from two to four miles per hour, he told a passenger to get off, who obeyed liis direction and was killed, it was held that this act was not in law negligence, but was a question for the jury. (Lambeth v. N. C. R. R. Co., 66 N. C. 494.)
In another case a young, vigorous man stepped down from a moving train. He had a valise in one hand and a basket in the other. There was no direction from any servant of the company. In an action to recover for injuries received it was held that it was a question for the jury whether he exercised due care. (Cumberland Valley R. R. Co. v. Maugans, 61 Md. 53.)
I think that the act of the deceased in attempting to board the train upon the invitation of the conductor. and under all' the circumstances disclosed in this case, presented a question of fact for the jury and not a question of law.
The judgment in this case cannot be disturbed unless we are prepared to.decide that the deceased was in law guilty of negligence in attempting to board the train in the manner and under the circumstances stated. The evidence of negligence-on the part of the defendant is precisely the same now as when the case was here before. On that appeal Judge Pecicham said: “ It was the duty of the railroad company (having advertised so to do) to stop its trains at the station in question, and to give ample time to all persons desirous of getting on or leaving at that station to do so.” And again, referring to the invitation of the conductor to get on the train, he said : “ It may be assumed that this direction implied a notice to the *28deceased that the train would not stop at that station, and that unless he attempted to get on while the car was thus in motion he would be left at the station and compelled to take another and a later train. It may be assumed that in giving this direction and in failing to stop the train the company was chargeable with negligence.”
The point that the trial judge submitted nothing to the jury except the evidence as to whether the conductor did or did not invite the deceased to get on the train is utterly untenable. The jury were expressly charged to inquire upon the evidence whether the defendant failed to perform its duty to the deceased in not bringing the train to a stop, and upon the question whether a safe opportunity was afforded to the defendant to get upon the train, they were to consider the, evidence in regard to' the invitation of the conductor. At the end of the charge defendant’s counsel requested the court to instruct the jury that in case they found that the conductor did not invite the deceased to get aboard the train, their verdict must be for the defendant, as that ended the case, and this request was allowed. . This did not withdraw from the jury the evidence bearing upon the failure of the defendant to stop, or any other question previously submitted, but was in effect an instruction that, although the defendant failed in its duty to stop the train at the station, yet there could be no recovery unless the conductor invited the deceased to get qn. If there was any error in this part of the charge it was in favor of the defendant and cannot now be used for the purpose of reversing the judgment.
The judgment should be affirmed.
All concur with Gray, J., except Ruger, Oh. J., Andrews and O’Brien, JJ., dissenting.
Judgment reversed.