The opinion
McCulloch, J., (dissenting.) I dissent from the rule announced in this case that plaintiff can not recover because she failed, under the circumstances described, to notify the conductor of her desire to get off at Smith’s Crossing. I think that it was the duty of the conductor to ascertain whether or not he had passengers for that place, or to give passengers reasonable opportunity to notify him of that fact. He knew, of course, that the rules of the company permitted the sale of tickets for that station, and he was therefore apprised of.the fact that passengers for that station might be on board the train. When he found that he could not, in the regular course of his trip through the train collecting fares, go through the entire train before reaching the flag station, he could have passed through each coach and inquired for passengers for the station, and, failing to do this, he ought to have stopped the train. In other words, he ought to have given passengers for that station a reasonable opportunity to notify him of their presence on the train or to have stopped the train at the station. The initial duty was upon him, and not upon the passenger. It seems to me too. -onerous a duty to put upon a passenger — especially a woman — to require her to go through a moving train, from coach to coach, for the purpose of notifying the conductor of the place of destination. Passengers are expected to remain in their seats, or at least in the coach to which they are assigned, and not to move about from coach to coach. Of course, if the plaintiff had failed, after reasonable opportunity given, to notify the conductor of her destination, then she would have been guilty of contributory negligence, and she could not recover. But no such question is presented in this case. It is admitted that the conductor never went into the coach occupied by plaintiff until after the train passed Smith’s Crossing. Therefore she could not, without disregarding her own safety, have sought out the conductor to give notice ot her destination.
I think the learned judge who tried the case below had the correct idea of the law concerning the duty of the carrier and so expressed it to the jury in his instructions. Of course, the remarks inadvertently made concerning the custom of railroads in regard to stopping trains at suburban stations was improper; but it does not appear that any prejudice could have resulted to appellant from the remark. It is undisputed that the plaintiff was carried -by her destination, and that the conductor gave her no reasonable opportunity to notify him of her destination. This made out a case of negligence on the part of the company. The judgment should, in my opinion, be affirmed.