dissenting;
It is the duty of a railroad company, on stopping a train at *336a station, to hold it long enough to give passengers who wish to alight a time reasonably sufficient for that purpose; and it is the duty of such passengers to exercise reasonable diligence and care in leaving the cars. As the time required, and the diligence to be observed, usually depend on the circumstances present in each instance, the question respecting a failure of duty on either side is, in general, to be determined by a jury. As in all other cases, however, the question is for the jury only when the measure of care is indeterminate or the facts are in dispute. When the measure of care is fixed, and remains constant, and the facts are undisputed, the question of conformity with its requirements is to be determined by the court.
The question arising in the present case is whether, when a train has reached a terminal station, and, so far as can be seen, all passengers have alighted, it is the carrier’s duty to search the closets before moving the train, to ascertain if there are passengers yet to leave, who have, without notice to the trainmen, placed themselves out of sight. If such is the carrier’s duty, it is obviously a fixed and unvarying element of the measure of care on his part. There is nothing indeterminate about it. There is no question in relation to it to be determined by a jury, except when the fact of performance is in doubt. In the absence of such doubt, it is for the court to apply the rule. As said by Mr. Justice Potter, in Custer v. B. & O. R. R. Co., 206 Pa. 529: “ Whenever the facts are ascertained, the rule of conduct, ox-, in other words, the rule of law to be applied, is to be determined and laid down by the court, and is not to be left to be defined by the accidental feelings of a jury. . . . The law tends coxxstantly toward the attainmexxt of greater certainty of definition, and to the substitution of specific rules of conduct instead of featureless generalities. It is always desirable that the standard by which parties are judged should be oxxe of specific acts or omissions, with reference to the special circumstances of the case. . . . Hence the long and growing line of decisions in which, instead of relying upon the vague and uncertain estimate of a juxy as to the degree of care which would be exercised under the circumstances by a prudent man, there has been substituted the more precise and definite rule of certain specific acts, whose existence or omission constitutes negligence.”
*337If the obligation to make a search of this character is by law cast on the carrier, it can arise only from the nature of the duties which carrier and passenger owe to each other at a terminal station. These duties grow out of the conditions ordinarily to be anticipated as likely to arise. On the part of the earlier, they include a stoppage for a time reasonably sufficient for the passengers to leave the cars, with the means and attention necessary to enable them to alight in safety. On the part of the passengers, they include the requisite preparations for leaving the cars, with reasonable promptness and care in alighting. If, ordinarily, with a terminal station at hand, passengers were likely to enter a closet, and to remain after all others had left the train, the carrier should recognize and provide for such a condition. But this condition, however, is of rare occurrence. It is so unusual, indeed, that we have been referred to no case, and have met with none, in which the question arising here has been presented. While railroad companies are not sparing of rules to meet all probable contingencies, they are not required to provide for one unlikely to arise. Here the carrier had rules requiring employees to assist passengers to enter and leave the cars, give them all necessary directions, and exercise the greatest care to prevent injury to them; and also to “pass through the cars at the end of each route, after passengers have left them, and carefully watch for articles forgotten by passengers.” These rules obviously meet all the conditions ordinarily arising; and the probability that passengers may remain in a closet at a terminal station after all others have alighted is so remote that a rule requiring a search of the closets was deemed unnecessary. Since it is the passenger’s duty to use reasonable diligence in alighting, it is not too much to require him, in the unusual contingency of visiting a closet as a terminal station is reached, to give notice to a trainman, that time may be allowed him to leave before the train is moved. In the absence of such notice, it must be held that the trainmen have a right to assume that, when no passengers remain in sight, all have left the train.
In the case in hand, the plaintiff was a resident of Frank-ford, the terminal station, and appears to have known that the train was about reaching the station. “When I arrived at Frankford station,” he testified, “ or a few minutes before, I *338had occasion to go into the water-closet.” He gave no notice of this to any trainman, and so far as appears there was no lack of opportunity for doing this. He remained in the closet until all other passengers and the trainmen had left the train, and they appear also to have left the station. He testified that when he reached the platform, on his way to alight, there was “ not a soul in sight.” His estimate of the intervening time, as “ probably one or two minutes after the train stopped,” seems merely conjectural. Here, as in McClintock v. Penna. R. R. Co., 21 W. N. C. 133, it was evident that if there was time for all the other passengers to alight safely there was time for him to do so, there being nothing to obstruct his movements. If from delay through his own act, unknown to the trainmen, he became exposed to danger, it was not the fault of the carrier.
There is no evidence of neglect by the trainmen of the rule requiring them to assist passengers in alighting while passengers were leaving the cars. The presumption is that the trainmen performed their duties, including that of passing through the cars in search of articles forgotten by passengers. The plaintiff not having then made his appearance, and the trainmen having had no notice that he had gone to the closet, they were justified in supposing that all the passengers had alighted, and that there was therefore no occasion for them to remain longer.
There being no facts in dispute, there was nothing to be submitted to the jury. There was no ground for the direction to find “ whether or not the company did its duty ” in the premises. If the company was required by law to search the closets, it was negligent in not doing so. If it was not required to do this, there was a full performance of its duty. Upon the unquestioned facts, it was for the court to declare, as matter of law, whether there was negligence on the part of the carrier. And since, as I view the law, there was no negligence, the defendant’s point should have been affirmed, and the judgment reversed.
Poetes, and Mobbison, JJ., concur in the dissent.