dissenting.
I agree with the majority of the court that this case should be affirmed because no negligence of appellee is shown, but can not assent to holding that as matter of law appellant was guilty of contributory negligence. That was a question of fact for the jury. Cumberland Val. R. R. Co. v. Maugans, 61 Md. 61, and cases cited; Beach on Contrib. Neg., 155; Fulks v. St. Louis & S. F. Ry. Co., 111 Mo. 339, and cases cited.
In the latter case the court says: “ To attempt to get on or off a train in rapid motion would be an act of gross negligence; but it is generally held that the courts will not, as a matter of law, declare a person guilty of contributory negligence who attempts to get on or off a train while it is moving slowly, especially at a platform. The question of contributory negligence in such cases is one of mixed law and fact, and should be determined by the jury, under the guide- of proper instructions, in the light of all the attending circumstances. Such has been the .repeated ruling of this and other courts.”
In the case at bar the plaintiff testified “ the train had just started” when he jumped on. On cross-examination he said: “ I went along the side of the train some distance, as it was running very slow, but I don’t know how slow.” His brother, who got on the same train about' the same time that plaintiff attempted to get on, testified: “ I jumped on the train safely and ran up the stairs. He (plaintiff) started to walk or run alonside of the train the same way the train, was going, and about the time the platform back of the one I got on came along, he took hold of the railing and put his left foot and took one step with the right foot, and landed in this pile of cinders.”
Bittinger, a witness for plaintiff, testified: “ They (plaintiff and his brother) started to run and one of them made the train easily. * * * The train was already in motion. Chris j umped on the train and Henry (the plaintiff) followed, f * * He (the plaintiff) got hold of the car and ran along with the car to get on the step, and got caught in the pile of cinders.”
McCullough, a witness for plaintiff, testified: “Idonot think the train was going faster than an ordinary horse car in Chicago. They slowed up at the switch about a block away to allow the switchman to get on.”
It also appears that plaintiff was a young man, twenty seven years old at the time of the trial, three years after the accident, making him twenty-four years old at the time of the injury, and had been in the habit for several years previous, during the summer, of taking trains at this point.
In Chicago & A. R. R. Co. v. Bonifield, 104 Ill. 223, the Supreme Court, it being a case of a passenger alighting from a railway train in motion, said : “A train might be barely in motion—moving so slowly as to be scarcely perceptible on close inspection—when to get off would be attended with no danger whatever. To hold such an act, under such circumstances, gross negligence per. se, would find no sanction in reason or justice. It would violate the experience of all persons and be contrary to the reason of all men. * * * The value of a certain fact in evidence depends largely on the attendant circumstances. An act which is gross negligence in one case, is not in another, owing to modifying circumstances. * * * But few acts can be said to be negligent per se.,
So it may be said in the case at bar, the plaintiff being a young man, and the train running very slowly, his act in getting on the train might not be negligent per se, while it would have been such in the case of a person incumbered by baggage, or of an old or infirm person, or in one not in the habit of taking railroad trains. The minds of reasonably fair-minded persons might differ as to whether he was negligent or not. Illinois C. R. R. Co. v. Able, 59 Ill. 131; Illinois C. R. R. Co. v. Haskins, 115 Ill. 300; Chicago & E. I. R. R. Co. v. O’Connor, 119 Ill. 597; Lake S. & M. S. R. R. Co. v. Brown, 123 Ill. 174; Chicago & A. R. R. Co. v. Byrum, 153 Ill. 137.
In the Byrum case appellee, a woman, stepped from a slowly moving railway train which had gone about forty feet, was injured, and recovered. The Supreme Court said: “ Whether or not appellee was guilty of such contributory negligence in alighting from a moving train as would bar a recovery, was a question of fact to be determined by the jury under all the attendant and surrounding circumstances.”
While I am inclined to the view that under all the circumstances in evidence, the plaintiff, as a matter of fact, was negligent, still I think that in the first instance at least, the question was one for a jury, and not the court.