On Petition for Rehearing.
Howard, J.Counsel for appellee in their briefs on the petition for a rehearing of this case say that ‘‘The *135court wholly fails to assign any force to the allegation of the complaint that appellee Was stricken with dismay and fright and seized with fear that she would be carried past her station and away from home.’ ” It is claimed by counsel that This condition of mind was caused by two things for which the appellant was responsible, namely, the moving of the train prematurely and the failure of the trainmen to meet and assist her to alight.” The complaint, however, shows that appellee saw that the train was in motion before she left the interior of the car and went upon the platform. She was then in a safe place. The perturbation of mind, which the law will look upon as an excuse in one who, being suddenly called upon to choose between two dangers, by mistake selects the greater, can hardly apply to appellee. She was in a place of perfect safety, but deliberately walked into a place of danger. While the appellant should have stopped its train, should have provided a station platform within easy reach of the car steps, and should have had some one present to aid this lady, loaded with bundles as she was, to descend from the train in safety, yet we can see no excuse in all this for her rash assumption of this risk of danger. On the contrary, her knowledge of the situation makes her negligence the greater. Had she been an active, young person, and without baggage to impede the free use of her arms as she descended, it might be safe for her to alight. We did fully consider the clause in the complaint as to the dismay and fright of appellant and her fear that she should be carried past her home; but we could see no reason in this, nor can we now, why she should deliberately walk from her place of safety into this manifest danger. Neither could we see then, nor can we now, that appellant, however much at fault, was to blame for appellee’s dismay and fright. ■ Appel*136lee might well be angry with appellant for taking her away from the station; but before there could be any room for dismay or fright some danger must impend. No danger is shown from which appellee was forced to flee. She was as safe in the car as could be any passenger sitting upon one of the seats, or standing inside the-door; but she herself, without compulsion or even invitation, walked out into the open danger-
Nor is it true that she did not see and know the danger which she thus deliberately took upon herself. The complaint shows that she was well acquainted with the sidetracks, the passage of trains, the proper station for passengers to alight, and that this was the station at her own home. She also knew that the trainmen assisted ladies and children to alight, and that such assistance was necessary in order to alight with safety; that the station .platform was twenty-six inches below the car steps; “that passengers in alighting from said cars, at said point, were required to make a step down of said distance of twenty-six inches, and that children and female passengers could not step from the car steps to said platform on account of said distance between them, but were compelled to jump down with both feet off the step at once, or in a manner so, to their great hazard and peril, and which they could not do if unassisted, and the car was in motion, without almost certain injury.”
All this she knew. She also knew that she was a woman encumbered with her clothing, and “carrying with her a goodly sized package, consisting of two pieces of carpet, rolled separately, but lashed and tied together in one bundle, and some other small packages.” Instead, therefore, of being in a condition to risk the danger so apparent in her progress out upon the platform and down the car steps, she knew that she was so hampered in her freedom of movement, and in her *137ability to use her hands and feet, that what might be comparatively safe for another to do was dangerous for her.
Counsel next say that the court invaded the province of the jury in drawing the inference of contributory negligence from the facts pleaded in the complaint; and the following is cited from Town of Albion v. Hetrick, 90 Ind. 545, that “It is only when the standard of duty is fixed and certain, or where the measure of duty is defined by law, and is the same under all circumstances, or when the negligence is so clear and palpable that no verdict could make it otherwise, that the question of negligence becomes one of law and not of fact. ”
Counsel’s position here seems very near to a begging of the question. We think we have shown, both here and in the original opinion, that appellee’s negligence “ is so clear and palpable that no verdict could make it otherwise.” Indeed, in the case at bar, the facts as found by the jury disclose the negligence even more clearly than it is shown in the complaint.
Nor is it necessary, as counsel seem to assume, that under the ruling here it must follow that under all circumstances it will be an act of negligence for one to enter upon or alight from a car while in motion. Some of the courts have held this doctrine, and even this court has in certain cases seemed to have gone to that extent. There is, however, no such holding here. The holding is that appellee, situated and encumbered as she was, and knowing that the train was not only in motion, but increasing its speed, knowing too that'a woman could not make the descent of over two feet to the platform in safety without help when the car was in motion, and knowing also that no help was present, yet undertaking to descend unaided, was guilty of negli*138gence “so clear and palpable that no verdict conld make it otherwise.”
As well said by counsel for appellant, the opinion does not state as an abstract proposition of law, that a passenger who attempts to leave a moving train at a station is per se guilty of contributory negligence, regardless of all the circumstances and surroundings. The character of a complaint in a given case cannot be overlooked. Here the complaint undertakes to detail all the circumstances and surrounding facts connected with the happening of the accident. The court cannot ignore these specific allegations, but must construe the pleadings with reference to them; and, in so doing, conclude, as a matter of law, that the appellee was herself guilty of negligence, as disclosed by the facts pleaded by herself.
In this and in other jurisdictions, we are satisfied that the courts have gone further than would be necessary in order to sustain the demurrer to this complaint.
In O'Toole v. Pittsburgh, etc., R. R. Co., 158 Pa. St. 99 (38 Am. St. Rep. 830) (22 L. R. A. 606), the court, after defining negligence to be “the absence of care according to the circumstances,” said: “All experience has demonstrated that to get off a moving car is highly dangerous; therefore, it is held that such an act is negligence per se, and the passenger, if thereby injured, except in very rare cases, is guilty of contributory negligence and cannot recover. ”
In Adams, Admr., v. Louisville, etc., R. R. Co., 82 Ky. 603, itwas found that the employes of the railroad company called out the station, and that the train was moving slowly to the depot when the intestate got off. The court said: “While it is not necessary to determine the liability of the company in failing to have a secure and safe place of egress from any of its cars whenever it may stop *139at a depot, we are satisfied from the proof that the cars were in motion when the appellant’s intestate attempted to leave them, and that his sad misfortune resulted from his own neglect. ”
A case much like the one before us was that of the Ohio, etc., R. W. Co. v. Stratton, 78 Ill. 88. There it appeared that the plaintiff and his father went out upon the platform of the car, and as the train approached the station they went down upon the steps to be ready to get off as soon as the train should stop. The son was upon the lower step and the father upon the next one above, holding him by the hand. Each of them carried some baggage. When the car came to the platform of the station, the son was about to step off, as the train seemed to. stop, when suddenly the train started forward again by a violent movement, and the father was thrown upon the platform and the son under the wheels.
The court said in that case: “By their voluntary choice they selected a most dangerous place, on the steps, of the car, while the train was yet in motion. Both were encumbered with baggage, which would effectually prevent them from holding on to anything to secure their safety. The position occupied was dangerous, and was taken without due care. Whether the accident was produced by any sudden, violent movement of the cars, caused by putting on or letting off brakes in the ordinary management of the train, or whether they were induced to step off, under the belief that the train had come to a halt, when it had not,, it must he attributed to their own omission to observe the usual precautions, rather than to any negligence on the part of the defendant. It may have been the impression of plaintiff’s father, that the train would stop at that station but a short time, and that it would he necessary to get off very quick. But this belief,' however induced, could *140not justify him in exposing himself and son to such great hazards. * * * Defendant had undertaken to*, stop its train at Salem, to let the passengers get off, and any violation of that agreement would have subjected it to damages. A passenger has no right to attempt to get off á train when in motion, and if he undertakes to do so without the knowledge or direction of any employe of the company, it is at his peril, and he must bear the consequences, however disastrous. ” See generally, note to Carr v. Eel River, etc., R. R. Co. (Cal)., 21 L. R. A., at p. 358, and following pages.
A case even stronger than the case at bar is one already decided by this court, that of Reibel, Admx., v. Cincinnati, etc., R. W. Co., supra, a case also on a demurrer to the complaint. There it was alleged that Reibel, with five others, took passage for the town of Sunman, paying the proper fee to the conductor, who informed him that the train would stop at Sunman. As the train approached the town the signal that it would stop was sounded, and thereupon Reibel and his fellow passengers went out upon the platform preparatory to alighting when the train should stop. The speed of the train was slacked to six miles an hour, but the train did not come to a stop; and as the speed was about to be increased Reibel and his companions jumped upon the platform of the station, believing, and having good reason to believe, that they could safely so alight from the train. The other five did alight in safety, but Reibel, notwithstanding due care on his part, was caught by his clothing and thrown under the cars and instantly killed, being at the time about twenty-one years of age.
The court, in holding that a demurrer to the complaint was correctly sustained, said : ‘ ‘ The general rule is, that passengers who are injured while attempting to get upon or off a railroad train while it is in motion *141cannot recover for their injuries. To this general rule, some exceptions have been recognized, one of which is where the passenger is either ordered or invited by the company or its agents to get on or off, notwithstanding the motion of the train. But a passenger must not attempt either to get onto or off a train while it is in motion, if it be obviously dangerous to make the attempt, although' he may have been advised, or even ordered, to do so by the servants of the company. Such an attempt is at the peril of the passenger, when he is a person of ordinary intelligence and not acting under constraint. While it is the plain duty of a railroad company to stop its train at the place of a passenger’s destination long enough to permit him to get off with safety, the fact that a train is about to pass such place of destination without stopping, does not justify the passenger in incurring any serious risk by jumping from the train. In such a contingency, the passenger’s remedy is against the company for carrying him past his place of destination.” We do not think that the Louisville, etc., R. R. Co. v. Crunk, 119 Ind. 542, shows a state of facts making the conclusion of the court in that case inconsistent with the foregoing decision.
If Reibel, a young man but twenty-one years of age, was held guilty of contributory negligence by jumping from the train that, although having slowed up, was yet proceeding to carry him beyond his station, even too when he believed and had good reason to believe, that he could alight without injury, what shall we say of a woman whose skirts were much more likely to catch the cars than was Reibel’s clothing, who was besides burdened with her bundles, and knew that the landing was dangerous, so that women and children could not alight in safety without help ? To hold that she was *142negligent under the circumstances is very far from holding that it is negligence per se to go upon or alight from a train when in motion.
Filed December 18, 1895.The petition is overruled.
McCabe, J., took no part in the decision of this case.