dissenting. When the train stopped at Bagley the feme plaintiff started to the rear door of the coach, which was at or near the crossing, to get out. Had she been permitted to do so she would not have been injured. The conductor called her to come to the front door, which was the length of the car, some sixty feet farther from the crossing. When she got upon the ground there were several cross-ties lying along the roadbed between her and the railroad crossing. It had been raining and *560tbe walkway around tbe end of tbe cross-ties was muddy and slippery and tbe sixty feét tbat sbe was unnecessarily required to walk to reach tbe crossing was in a shallow cut. It was negligence in tbe defendant company to require her to get out at this spot instead of tbe other end of tbe coach, where sbe would have stepped down upon thé crossing. Tbe defendant owed to her a decent and safe landing place, all tbe more so where, this not being a regular station, there was no platform.
Tbe burden was upon tbe defendant under tbe statute to prove contributory negligence. It offered no evidence whatever to tbat effect, and tbe only evidence on tbe point was by tbe plaintiff herself, who said tbat it seemed to her safer to step on tbe cross-ties than on tbe muddy sloping earth in getting back to tbe crossing. It is patent to any one tbat this must have been so. If tbe cross-ties were slanting a little, so was necessarily tbe ground upon which they lay, and tbe ground, being soft and muddy, was much more slippery than tbe cross-ties could have been. If sbe bad fallen by slipping in tbe mud, as sbe doubtless would have done, sbe must have fallen upon tbe cross-ties and been worse hurt., At any rate, tbe plaintiff bad a right both under tbe Constitution and tbe statute to have a jury and not tbe judge to pass on tbe facts.
It was tbe duty of tbe defendant to have given tbe plaintiff a safe place to dismount. It did no t do so, and would not permit her to get off at the other end of tbe coach, where sbe would have been safe. Tbe burden was upon tbe defendant to prove contributory negligence. It did not do so, and tbe only evidence is tbat of tbe plaintiff, tbat sbe pursued tbe safest course in stej)ping upon tbe cross-ties instead of upon the slippery mud.
Tbe plaintiff was still a passenger when sbe fell. Being a woman, sbe was entitled to tbe attention tbat tbe law required to be paid to women and children, who are less able to take care of themselves than men. Morarity v. Traction Co., 154 N. C., 586. Tbe conduct of tbe defendant company in preventing tbe feme plaintiff from getting out in a safe place and causing her to walk sixty feet through mud and slush was of itself actionable.
Certainly, tbe judge bad no right to say as a matter of law *561and in violation of the statute tbat the plaintiff was guilty of contributory negligence because she cbose what seemed to ber and wbat the jury doubtless would have found (if she had been allowed her constitutional right to a jury trial) was the safer method of traversing the sixty feet of the sloping cut.
In Roberts v. R. R., 155 N. C., 84, this Court quotes with approval, as it had previously done in Smith v. R. R., 147 N. C., 450, from Hutchison on Carriers, sec. 128, as follows: “It is the duty of railway companies as carriers of passengers to provide platforms, waiting-rooms, and other reasonable accommodations for such passengers at the stations and at such places at which they are in the habit of taking on and putting off passengers. Their public profession as such carriers is an invitation to the public to enter and alight from their cars at their stations, and it has been held that they must not only provide safe platforms and approaches thereto, but that they are bound to make safe for all persons who may come to such stations in order to become their passengers or who may be put off there by them all portions of their station grounds reasonably near to such platforms and to which such persons may be likely to go; and for not having provided such stational accommodations and safeguards Railway companies have frequently been held liable for injuries to such persons.” And in Mangum's case, 145 N. C., 153, Associate Justice Brown, in delivering the opinion, said: “It seems now to be almost elementary that one of the recognized duties of' a railway company that undertakes to carry passengers is to keep its station premises in a reasonably safe condition, so that those who patronize it may pass safely to and from the ears. Pineus v. R. R., 140 N. C., 450; Wood on Railways, 310, 1341, 1349. This duty extends not only to the condition of the platform itself, whereon passengers walk to and from the trains, but also to the manner in which that platform is allowed by the common carrier to be used. Western v. R. R., 73 N. Y., 935; Wood, supra. The defendant owed a duty to plaintiff, and to all other passengers, to keep its depot platforms used by them as a means of ingress and egress free from obstructions and dangerous instrumentalities, especially at a time *562wben its passengers are hurrying to and from its cars,” citing Pineus v. R. R., 140 N. C., 450, and R. R. v. Johnston, 36 Kansas, 769.
The plaintiff not having left the carrier’s premises, was still a passenger. Hansley v. R. R., 115 N. C., 602. Being still a passenger, she was entitled to a safe exit. 2 White Personal Injuries, sec. 557. If the railroad offers an egress that is unsafe, it is negligence. 2 White Personal Injuries, 619.
“The railroad should so arrange its station grounds that a passenger who gets off a train at the station, or at places provided to alight, may leave the cars without danger, and a reasonably safe passageway or a bridge should be provided leading to and from the station.” Hulbert v. R. R., 40 N. Y., 152. There a passenger who fell in a cattle-guard, going from the car to the station, was injured and recovered damages. “Every spot likely to be visited by passengers departing from depots should be made safe and kept so, and passengers injured may have compensation.” 1 Bishop on Noncontract Law, sec. 1086, quoted with approval, Lucas v. R. R., 119 Ind., 583; s. c., 120 Ind., 206; Gaynor v. R. R., 100 Mass., 215.
The passageway to and from a depot must be kept safe and passengers are entitled to a suitable place of egress. 1 Fetter on Carriers, 112; 2 Hutchison on Carriers, 1060, 1063. The defendant having required the female passenger to get out, not at the crossing, owed it to her to give her a safe, dry path back to the crossing, and if hurt by any defect in getting to the crossing the defendant is liable. Autry v. R. R., 156 N. C., 293.
The defendant was more negligent, not less so, in making the plaintiff get out at an unsafe place, when she could have gotten out at a safe place at the other end of the coach, as she wished to do, because this was a flag station. She has been deprived of a right guaranteed her by the statute and the Constitution in being arbitrarily refused by the judge the opportunity to have twelve men to pass upon the question whether the railroad was guilty of negligence in causing her to get out of the train not at the crossing place. His Honor was further in error in depriving her of the benefit of the statute which placed upon the defendant the burden of proof to show that the plaintiff was *563guilty of contributory negligence and in finding iimself, not only without any evidence whatever, but in contradiction of the only evidence before him, that she was guilty of contributory negligence. She testified that she took the safest course. The presumption under the statute is that she did. Eevisal, 483. This presumption should be reversed only by a jury, as the statute requires.
The conduct of the defendant and the action of the court below are without any precedent to sustain them. All passengers, and especially ladies, are entitled to better treatment than this plaintiff has received. Her ankle was broken because the defendant put her off at an unsuitable place when she could have gotten off at a safe place, and that, too, when it was apparent that for her to get back to the proper point, the road, she would have to traverse a muddy, slippery, sloping bank encumbered with cross-ties. If necessary for her to get out at the front end of the coach, the train should have been run back till she could have landed at a safe spot.
The plaintiff testified that the usual place for putting off passengers at Eagley was at the crossing. That the egress they gave her was not a safe exit is conclusively shown by the fact that in attempting to get back to the crossing her ankle was dislocated, by reason of which she suffered greatly and was laid up two months. Her testimony that she chose the safest plan must be taken as true on a nonsuit. Spruill v. Insurance Co., 120 N. C., 147; Powell v. R. R., 125 N. C., 372, and cases there cited. In Wright v. R. R., 127 N. C., 228, this Court said: “The Court has heretofore had occasion to condemn the growing tendency to take cases from the jury and limit their sphere in damage cases. The right-of trial by jury is guaranteed by the Constitution, and on all disputed issues of fact the courts cannot be too careful to refrain from invading the province of the constitutional triers of fact.”
Hoke, J., concurs in the. dissenting opinion of Chief Justice CLARK.