Dissenting Opinions.
Elliott, C. J.— I regard the third paragraph of the complaint as good and am therefore compelled to dissent.
It is sufficient to state such facts as show that the plaintiff in an action for injuries resulting from negligence was free from fault. The complaint does this. Where facts are stated, there is no necessity in the world for the formal allegation that the plaintiff was without fault.
It is the duty of railroad companies to provide, at regular passenger stations, suitable and safe means for alighting from their trains. Stewart v. International, etc., R. R. Co., 53 Tex. 289; S. C., 37 Am. Rep. 753; McDonald v. Chicago, etc., R. R. Co., 26 Iowa, 124; Patten v. Chicago, etc., R. W. Co., 32 Wis. 524; Osborn v. Union Ferry Co., 53 Barb. 629; Imhoff v. Chicago, etc., R. W. Co., 20 Wis. 344; Martin v. G. N. R. W. Co., 16 C. B. 179; Nicholson v. Lancashire, etc., R. W. Co., 3 Hurlst. & C. 534; Caterham R. W. Co. v. London, etc., R. W. Co., 1 C. B. n. s. 410; Shearman & Redf. Neg., see. 275; Hutchinson Carriers, sec. 516; Redfield Carriers, 514; Foy v. London, etc., R. W. Co., 18 C. B. n. s. 225; Angelí Carriers, 221 n.; Wharton Neg., secs. 652, 653. I think our own cases approve this doctrine; that of The Jeffersonville, etc,, R. R. Co. v. Riley, 39 Ind. 568, certainly does, for it cites with unqualified commendation McDonald v. Chicago, etc., R, *179R. Co., supra. The Columbus, etc., R. W. Co. v. Farrell, 31 Ind. 408, recognizes the correctness of this doctrine.
A passenger has a right to presume that a railroad company has performed the duty imposed upon it by law. No man who reasonably acts upon the presumption that a railroad company, whose passenger he is, has done its duty, can be deemed guilty of negligence in so acting. It would be monstrous to require a passenger to ascertain before acting whether a law-enjoined duty had been performed.
The complaint shows that it was not negligence to step from the appellant’s train. It is indeed not in itself negligence to get off a slowly moving train. Kelly v. Hannibal, eta., R. R. Co., 70 Mo. 604; Doss v. Missouri, etc., R. R. Co., 59 Mo. 27; S. C., 21 Am. R. 371. But in the present case the confessed allegations of the complaint show that if the appellant had done its duty, by providing suitable means for alighting from its train, the appellee could have alighted in perfect safety. I borrow, as fitting, glove-tight, this case, the language of this court in The Jeffersonville, etc., R. R. Co. v. Hendricks, 41 Ind. 48 : “ The allegation above, admitted by the demurrer to be true, is that the motion of the train was so far checked that deceased could safely leave the same. If she could safely leave, so far as any risk from the motion of the train was concerned, then she ran no risk, and it was not negligence on her part to make the attempt. It would be a contradiction of terms to say that it was negligence on her part to undertake to do what she could safely do.”
In the case at bar, the complaint shows not only that the appellee could have got off the train in safety, but it also shows that he did get off under the order of the conductor, and that, entirely relying on his instructions, he stepped off said train as directed. Where a passenger leaves a train in obedience to the order of the conductor, and under his directions and instructions, he is not guilty of contributory negligence. This is so, even though the act be apparently attended with some peril; but here the direct showing is that it was not at, all *180dangerous. I believe in the wisdom, the j ustiee and the policy of the doctrine laid down in the opinion of Fullerton, J., in McIntyre v. New York Central R. R. Co., 37 N. Y. 287, and I think I may safely say that all the well considered cases approve it. Said this learned Judge, in speaking of the duty of the carrier to passengers: “ If, in discharging that duty, they required her ” (the plaintiff’s intestate) “to perform an act which was perilous in itself, and in doing which she lost her life, the negligence, if any, which that act involved, should be imputed to the company alone. The rule that contributory negligence will prevent a recovery, * ought not to be applied to such a case. It would seem to be manifestly unjust to characterize as negligence the act of yielding obedience, under such circumstances, to the requirements of the party inflicting the injury, and to hold, as between the parties themselves, that it should deprive the party injured of all legal redress.” There are many well considered cases sustaining this doctrine. Siner v. Great Western R. W. Co., L. R. 3 Exch. 150; Pennsylvania R. R. Co. v. McCloskey’s Aclm’r, 23 Pa. St. 526; Chicago, etc., R. R. Co. v. Randolph, 53 Ill. 510; S. C., 5 Am. R. 60; Lambeth v. N. C. R. R. Co., 66 N. C. 494; S. G, 8 Am. R. 508; Filer v. N. Y. C. R. R. Co., 49 N. Y. 47; Georgia, etc., Co. v. McCurdy, 45 Ga. 288; S. C. 12 Am. Rep. 577; Bridges v. The North London R. W. Co., L. R. 6 Q,. B. 377. I confess my inability to see any distinction between this case and that of Pennsylvania Co. v. Hoagland, 78 Ind. 203. In that case it was said: “ The conductor and brakemen, in charge of the passenger train, were the agents and representatives of the appellant; and the said Hattie E., as a passenger under their charge, had the right to rely implicitly upon their statements to her and in her hearing.” The rule has been extended to the case of a trespasser. Benton v. C. R. I. & P. R. Co., 55 Iowa, 496. It is applied to eases where a traveller undertakes to cross a railroad track by the direction of the company’s servant. Bayley v. Eastern R. R. Co., 125 Mass. 62.
All that any complaint need do is to affirmatively show *181that the plaintiff acted with ordinary prudence. It was prudent for the appellee to presume that there was a proper place for alighting; it was prudent for him to attempt to alight where there was no risk, and it was also prudent for him to obey the directions of the conductor; and as the complaint shows that he did act upon this presumption, and also shows that if the company had done its duty there would have been neither injury nor risk, and shows further that he did obey the directions of the conductor, it does, in my opinion, clearly show that he acted with ordinary prudence.
The complaint not only shows the facts just enumerated, but it also shows, and in no uncertain manner, that the injury was attributable solely to the negligence of the company, in requiring its passenger to alight upon an uneven piece of ground, which cast him under the wheels of the train. The cause, and the sole cause, of the injury being shown, the hypothesis of fault on appellee’s part is completely excluded. But, even more than this, it is directly averred that what he did do was done under the directions and instructions of the company, and, if it was negligent to do the act, it was the carrier, and not the passenger, who was negligent. I can not conceive a case where facts could more clearly prove due care and reasonable prudence.
Worden, J. — While I may not concur with all that is said by Commissioner Franklin in the opinion prepared by him, in this case, I am of opinion that the third paragraph of the complaint was insufficient, and, therefore, that the demurrer to it should have been sustained.
The paragraph has no general averment that the plaintiff was free from contributory negligence.
Assuming that under the circumstances he was guilty of no negligence in alighting from the train at the time he did, and that he had a right to suppose a suitable platform had been provided, it still does not appear that he alighted in a reasonably prudent or careful manner. There is no averment that *182he exercised any care or prudence in his manner of alighting, or guarded in the least against any injury he might receive in doing so. The circumstances that it was dark, the wind blowing and the rain falling, did not relieve him from the necessity of exercising reasonable care to avoid injury in alighting. From all that appears, his negligent and careless manner of alighting may have contributed to the injury, although no platform had been provided.
Woods, J. — While concurring in the general scope of the principal opinion, I concur fully in the ground on which Worden, J., places the case.