The opinion
MAESHALL, J.
(Dissenting.) — I dissent from the majority opinion in this case for the following reasons:
I.
The refusal of the court to sustain the demurrer to the evidence is the first question presented by this record.
The petition is bottomed upon the averment that the train was slowed up, coming nearly to a stop when “upon the invitation of defendant’s agents and servants in charge of said train,” the plaintiff stepped upon the running board of the grip car, and before he had time to take a seat the car was started with a violent lurch, so that it threw plaintiff’s body-outwards and brought it into violent contact with a wagon, which was standing near the track, and which the defendant’s agents saw or could have seen by the exercise of reasonable care, but which the plaintiff did not see -because his back was turned towards it, whereby he was injured.
The plaintiff’s own testimony is, “that the new Planter’s Hotel had just been erected at the southwest corner of Fourth and Pine streets, and was not yet finished, and that there was a stack of bricks, on Fourth street, in front of the hotel, extending from the curb close up to the west rail of the -west track of defendant and north to within a few feet of the crossing, and being about twenty feet high and from fifteen to twenty feet long; that when he had barely gotten to the comer above mentioned one of defendant’s trains, consisting of a grip ear and a trailer, came along, going in a southerly direction, and that he signalled it to stop; that the train stopped, with the rear end of the front (or grip) car opposite to where witness *658 was standing; that the gripman was at the time at his post, in the middle of the grip car and that the conductor was on the east side of the front platform of the trailer, about seven or eight feet from witness; that witness then got upon the rear end of the running-board along the side of the grip car, and caught hold off'the upright opposite the last seat, which was occupied by a man whom he afterwards learned to be Mr. IT. M. Pollard; that immediately after doing this, and while he was catching hold of the upright, in front of Mr. Pollard, with his right hand, with a view to getting into the last seat but one, the cars started up violently and with a jerk, and witness having let go his hold of the upright opposite the last seat and being in the act of stepping into the last seat but one, was struck on the hand by the rear end of a wagon which was standing near defendant’s track, south of, and concealed by the stack of bricks above referred to, and thrown ‘all in a heap against the back of the seat that he was getting into’ and against Mr. Pollard.”
The testimony of H. M. Pollard, the only other witness as to the accident for plaintiff, was, “that he was on the grip car of defendant company on which plaintiff was injured at the time such injury occurred, and that he occupied the last seat or the last seat but one on the west side of the car; that he saw plaintiff board the car at the corner of Eourth and Pine on the day mentioned; that he did not remember whether the car came to a full stop, but that he believed it did not: that plaintiff got on the running board, right against and a little to the rear of where witness was sitting, and before he had had time to take his seat, the car started up suddenly and he was struck by a wagon and “thrown right back against” witness, witness reaching out his -arm and keeping' him from falling; that the wagon which struck plaintiff was the first of two or three brick wagons which were standing just south of a large pile of bricks which extended so close to the track as to leave barely room enough for cars to pass; that the *659 length of the brick file was frobably the length of the car; that flaintiff got on the car very close to the brick file, and that there was no wagon north of the brick file, between it and the crossing.”
With the exception of the testimony of the defendant’s foreman, who was called as a witness for plaintiff, and who testified that from 4th and Pine to 4th and Chestnut (one block’s distance) it was up grade, about four feet to the block, and that cable cars can not be started with a jerk on an up grade, as the rope will slip through the dies several feet before a firm grip or hold can be taken on the rope on an up-grade, this was the whole of the plaintiff’s testimony.
Whether we take the plaintiff’s version, that the car stopped, or that of his witness, Pollard, that he did not remember whether the car came to a full stop, but believed it did not, the fact remains that the negligence charged in the petition, that the car was slowed up, coming nearly to a stop, when “upon the invitation of defendant’s -agents -and servants in charge of said train,” the plaintiff stepped on -the running board, the ear was started with a violent lurch before he could take a seat and the plaintiff was thrown outwards against a wagon which was standing near the track and which defendant’s servants saw or might have seen by the exercise of ordinary care, but which the plaintiff did not see because his back was turned,” is not -established by tbe evidence in this case.
There is no evidence that the plaintiff was induced to bo-ard a running train, “upon the invitation of defendant’s agents and servants in charge of the train,” as alleged in the petition, and which averment, as we shall directly show, was necessary -to state a cause of action. On the contrary the evidence clearly shows that plaintiff boarded the train while it was at a stop, as he testifies, or while it was slowed up, coming nearly to a stop, as he alleges in his petition, of his own free will and without invitation from or consultation with any person whomsoever.
*660 There is no evidence that the defendant’s servants saw or by the exercise of reasonable care could have seen the wagon, but that' plaintiff could not do SO' because his back was turned, as the petition charges. On the contrary the plaintiff himself testified that he “was struck on the head by the rear end of the wagon which was standing near defendant’s track south oí, and concealed by the stack of bricks,” which he said was twenty feet high, and Pollard testified “that the wagon which struck plaintiff was the first of two or •three brick wagons which were standing just south of a large pile of bricks which extended so close to the track as to leave barely room enough for cars to pass.” There is therefore no testimony that the defendant’s agents could have seen the wagon any better than the plaintiff could have done.
But the gist of the matter lies just here. The plaintiff got on the rear end of the grip ear at a point just north of the pile of bricks. The pile of bricks was, according to plaintiff, fifteen feet long, and according to Pollard the length of the grip car. The wagon was south of the pile of bricks and concealed by the pile of bricks which came so close to the track as to leave barely room for the cars to pass. Plaintiff says he had let go his hold of the upright in front of the rear seat, with a view to getting into the last seat but one when the car started up violently and with a jerk and his hand was struck by the rear óf the wagon. If as plaintiff testified the car had stopped when he got on it, then the sudden start or jerk must have propelled the car forward at least fifteen feet (as the plaintiff states the distance) or the length of the car (as Pollard states the distance) before he could have struck the wagon, for he got on the car at the north end of the pile of bricks and the wagon was concealed behind the south end of the pile of bricks, and the plaintiff says the pile was fifteen feet long and Pollard says it was the length of the car. This, too, on an up-grade of four feet to the block, when, according to the undisputed evidence of the plaintiff’s witness, Mahoney, *661 it is impossible to start a train with a jerk on an up-grade, as the rope will slip several feet through the.dies, before they can get a firm hold on it.'
The same condition is presented if the allegation of the petition that the car was slowed up, coming nearly to a stop or Pollard’s testimony that he did not believe the car had come to a full stop is taken as correct.
There are some physical facts, some laws of physics, which enter into the consideration of such cases as this, and we can not bring ourselves to believe that a grip-car, with a trailer attached, on a cable road, can be started, from a full stop or nearly so, by the strength of one man, applied to the lever which attaches the grip car to the rope, so suddenly or violently as to propel the train forward fifteen feet or the length of the grip car, on an up-grade of four feet to the block, before a man standing on the running-board can take his seat on the car.
It seems too plain to admit of argument that the plaintiff did not take a seat as promptly as he could have done or as he should have done in view of the dangerous proximity to the pile of bricks, but that he loitered on the running-board and was struck by the wagon because of its proximity to tire track and not because of any sudden lurch in starting the car, and hence that the plaintiff did not exercise that degree of care which a person of ordinary diligence would have exercised under the same circumstances, and therefore he was guilty of contributory negligence, which cuts off his right of recovery. Especially is this true in view of the plaintiff’s testimony that at the time of the alleged lurch he had let go of the upright opposite the last seat on the grip.-car while'1 standing on the running-board with a view to getting into the last seat but one.
This conclusion is, of course, reached without regard to the testimony of defendant’s witnesses, that the oar stopped and two ladies and a boy got on the east side of the grip-car, *662 while plaintiff got on the west side of it and at first stood on the rear platform and after the car started he stepped down on the running-board to go forward to get a seat, which, however, may possibly be the true solution of the accident, but which we do not here so decide.
A street railroad, like a steam railroad* “must allow reasonable time for passengers to enter and leave its car with safety, in the exercise of ordinary care. It should allow the passengers reasonable time to enter and take a seat, if there be one, or reásonable time to seize the straps furnished for passengers when standing; and while it may start its car before the passenger has had time to take a seat, or secure his hold on the strap, it must exercise the utmost care in starting so as not to jar or upset him.” [Dougherty v. Missouri Railroad Co., 81 Mo. l. c. 330.]
Eut no person has a right to board a moving train and hold the carrier for damages received in so doing, unless invited so to do by the carrier or his servants in charge of the train.
Hutchinson on Carriers (2 Ed.), sec. 641, says: “Thus nothing is more universally agreed upon, perhaps, than that the attempt to get upon a railway train whilst in motion, without a necessity for doing so induced by the conduct of the employees of the railway company, and without an invitation to do so from its agent acting in the line of his duty, is presumptively and generally, a negligent act per se, 'and precludes the passenger from the right to recover for the injury which may be thereby occasioned. Many eases have occurred in which passengers have received injuries in such reckless attempts, and it has been invariably held that, in the absence of circumstances to excuse such reckless conduct, the injured party is remediless. Nor will the refusal to stop the train, nor the custom of those in charge of the train to slacken its speed at the particular station, in order to take on passengers without coming to a stop, excuse "the negligence of *663 tbe party. If the train would not halt to receive the passenger, when by law or its published schedules it was obligatory upon the company to do so> the party would have his remedy by an action for the damage or loss sustained; -and if it had adopted a practice of receiving its passengers while in motion, it would be reckless conduct on the part of the company, or of those in charge of its trains, which would not justify or excuse the equally reckless imprudence of the injured party.” The author cites in support of the text the following cases: Phillips v. Railroad, 49 N. Y. 177 ; Harvey v. Railroad, 116 Mass. 269 ; Owen v. Railroad, 2 Bosw. 374 ; Ginnon v. Railroad, 3 Rob. (N. Y.) 25; Mettlestadt v. Railroad, 4 Rob. (N. Y.) 377; Ohio, etc., Railroad v. Stratton, 78 Ill. 88 ; Ill. Central R. R. Co. v. Chambers, 71 Ills. 519; Ills. Cen. R. R. Co. v. Slatton, 54 Ill. 133 ; Johnson v. Railroad, 70 Pa. St. 357; Knight v. Railroad, 23 La. Ann. 462 ; Hubener v. Railroad, 23 La. Ann. 492 ; Lewis v. Railroad, 38 Md. 588 ; Texas, etc., Ry. Co. v. Murphy, 46 Tex. 356 ; Mich. Cent. R. R. Co. v. Coleman, 28 Mich. 440 ; Timmons v. Railroad, 6 Ohio St. 105 ; Reddington v. Traction Co., 132 Pa. St. 154; Denver, etc., R. R. Co. v. Pickard, 8 Colo. 163 ; Swigert v. Railroad, 75 Mo. 475 ; Missouri Pacific Ry. Co. v. Railroad Co., 36 Fed. Rep. 879; s. c., 34 Fed. Rep. 92; Bacon v. Railroad, 21 Atl. Rep. 1002 .
Most of these were cases of steam railroads, but there is no difference in principle between steam railroads and cable or electric street railroads that run at from seven to fifteen or twenty miles an hour, so far as the danger of boarding them while in motion is concerned.
The case of Reddington v. Traction Co., 132 Pa. St. 154. was a street railway ease, and it was developed on the trial from the plaintiff’s testimony, that “he hailed an open summer oar of defendant company......; that the driver applied -the brake and cheeked the speed of the car; that the plaintiff, having his coat and dinner bucket on his arm, stepped upon *664 the step just behind the front dasher,, seizing the rail of the dasher with his right hand, the car still in motion; that just ■as he got into this position, the driver threw off the brakes, when a jolt or sudden upward movement of the ear occurred, the plaintiff’s foot slipped from the step, and he was thrown by the movement under the wheel of the car, receiving severe injuries.” The lower court nonsrdted the plaintiff, who then appealed to the Supreme Court, where the following terse opinion was delivered: “Per Curiam: The learned judge below was justified in directing a nonsuit in this case, for the reason that, according to the plaintiff’s own statement of the cause of the accident, he was not entitled to recover. It occurred as he was attempting to get on one of the defendant’s oars while it was still in motion. His left arm was encumbered with his coat and dinner bucket when he placed his foot on the step. The motion of the car caused his foot to slip, and, having only his right hand free, he was unable to hold on, and fell off and was injured. The only 'alleged negligence on the part of the driver was in loosening the brake when the plaintiff stepped on the car. It may be a jury would have found this -to be negligence, and that the plaintiff was not guilty of contributory negligence; but it would have been little short of a burlesque upon the administration of the law. The facts being undisputed, the learned judge below did not need the aid of a jury in determining their legal effect. Judgment affirmed.”
Eliminate the coat and dinner bucket on the left arm and substitute the fact that the plaintiff had let go his hold on the upright opposite the rear seat with a view to taking the end seat but one and this opinion might well have been written for this case.
Hutchinson on Carriers, in section 642, points out, however, some excuses for attempting to board a moving train, as for example, where the train fails to wait long enough for the passenger to get aboard, thereby placing him in the dilemma *665 of being left behind or of getting on while the train is in motion, and when there is no apparent danger in -attempting to get aboard; or where a passenger has tickets entitling him to passage over two roads-, running in connection with each other, and upon arrival at the terminus of the first road the train on the second, upon which he was to- pursue his journey, moved off without giving him time to cross the platform in order to reach it. The author, however adds: “But, to rebut the presumption of negligence and justify a recovery, it is said in a late case” (Solomon v. Railroad, 103 N. Y. 437 ) “it must appear that the passenger was, by the act of the carrier, put to an election between -alternative dangers, or that something Was done or said, or that some direction was given to the passenger by those in charge of the train, or some situation created which interferred, to some extent, with his free agency and was calculated to divert his attention from the danger and create a confidence that the attempt could be made in safety.”
In Texas it is held that even where the conductor fells the passenger to “jump on” it is a question of fact whether it was negligence to make the attempt. [K. & G. Ry. Co. v. Dorough, 72 Tex. 108 ; Texas, etc., Ry. Co. v. Murphy, 46 Tex. 356 .] And in New York is was held that the failure of the train to' stop on the invitation of the conductor to “jump on” will not excuse an attempt to board a train that is moving from four to six miles an hour. [Hunter v. Railroad, 112 N. Y. 371 .]
In Alabama it was held to be contributory negligence, which barred a recovery, for a person with his arms full of bundles, to attempt to board an -electric oar while it was running from four to seven miles an hour. [Birmingham Electric Ry. Co. v. Clay, 108 Ala. 233 .]
In Mississippi, an aged man, on a dark, cold night, made an attempt to board a moving train while having his valise in his hand. He missed his footing and was dragged one hundred and fifty yards. He was not allowed -to recover, al *666 though, the train had not stopped a reasonable time. [McMurty v. Railroad, 67 Miss. 601 .] The same rale of contributory negligence was followed in Vicksburg, etc., Ry. v. Hart, 61 Miss. 468 .
In Massachusetts is was held an absolute bar to recovery for a person to board a train at a station after it began to move. [Harvey v. Railroad, 116 Mass. 269 .]
In Pennsylvania the same doctrine is adhered to. [N. Y., etc., Ry. Co. v. Enches, 127 Pa. St. 316.]
Beach on Contributory Negligence (3 Ed.), "sec. 146, says: “Though the servants of the company fail to observe the time table notice as to the stopping of a train at a station, that fact does not entitle one to disregard the usual prudential considerations which should govern human action, nor does it subject the railroad company to liability for the consequences of an attempt to get upon a train in motion.”
In Iowa it is held that where the attempt is made by permission or direction of the conductor, the burden is on -the plaintiff to show that the permission or direction relied on was in accordance with the rules and regulations of the company. [Young v. Railroad, 100 Iowa 357 .]
In Swigert v. Han. & St. J. R. R. Co., 75 Mo. l. c. 481. the proposition was disposed of in a line as follows: “Whether the plaintiff was guilty of negligence in attempting to get on the train was a question of fact for the jury, inasmuch as the testimony was conflicting in regard to that matter.” The negligence charged in that case, however, was in not stopping the train long enough for the plaintiff to get on and in starting the train suddenly while the plaintiff was attempting to board it. The case is made to depend upon the principles announced in Straus v. Railroad, 75 Mo.. 185, which was an action for damages for prematurely starting a train before the passenger had time to alight from it, and in which it was held that if sufficient time was not allowed to the passenger to' leave the train and he jumped from the train “while its motion was so *667 slight as to be almost imperceptible,....".. it was for the jury to determine from the age and physical condition of the plaintiff, and the' attendant circumstances, whether such act constituted negligence......In such case, the negligence of the company’s servants, in prematurely starting the train, will support a recovery, if the act of the passenger, in jumping from the train, should not be found by the jury to amount to concurring negligence.”
It is not necessary to consider the converse of the proposition, under what circumstances a passenger may jump from a moving train without barring a recovery. Eor it is plain from the petition that the pleader in this case attempted to bring the case partly within the rule laid down in the case of Straus v. Railroad, supra, and to justify his boarding the moving train, “while its motion was so slight as to be almost imperceptible,” or as he stated it in the petition, the train “slowed up, coming almost to a stop,” and partly within the rule of an “invitation of defendant’s agents and servants in charge of said train,” and that he has wholly failed to establish either proposition by the evidence -adduced, but on the contrary has proved by his own testimony that the train stopped before he boarded it, but started before he was seated, and he does not show that he had not been allowed sufficient time to be seated before the train started, while on the contrary the physical facts show that Be had sufficient time.
The following rules are fairly deducible from the adjudicated cases: 1, It is the duty of a carrier of passengers to stop a reasonable time for passengers to board the train, and for them to be seated; 2, the carrier may start the train before the passenger has time to be seated, but in so doing it must exercise the utmost care so as not to upset him; 8, a person who boards a train that is moving more than four miles an hour, is guilty of contributory negligence, which will bar a recovery, even if he is invited or directed by the persons in charge of the train to “jump on,” or if it is *668 the custom of the carrier to receive passengers while the train is moving; 4, a person-may board a slowly moving train if put to an election of alternative -dangers, or if directed or invited to do so by the act or invitation of those in charge of the train, or if a situation is created by those in charge of the train which interferes to some extent with his free agency and is calculated to divert his attention from the danger and create a confidence that he can do so in safety, but in such cases it is a question of fact for the jury whether the act of the passenger amounts to concurring negligence; 5, a carrier must allow a longer time for sick and aged persons, delicate women and the lame, to board the car, if their condition -be known to the carrier or be plainly discemable, than for persons in good health and under no such disability.
Measured by these rules the petition stated á good cause of action, and if the evidence had tended to support the allegations of the petition we would not interfere, but the plaintiff proved a different state of facts from those -alleged, and waiving the question of variance, which the defendant did not timely object to, the facts proved do not show any negligence on the part of the defendant, but on the contrary show clearly that the plaintiff himself was negligent, and therefore the demurrer to the evidence should have been sustained.
II.
The first instruction given for the plaintiff is erroneous. Much has been written and said about the duty of a carrier -of passengers to stop for a longer time to enable sick, aged and infirm persons, delicate women and the lame, to board or alight from a train [Hutchinson on Carriers (2 Ed.), sec. 670 and cases cited], than is required for persons under ordinary conditions, but it will not profit us to discuss the proposition here, inasmuch as the plaintiffs correction of the otherwise concededly correct statement of facts made by the *669 defendant shows, that although the plaintiff was about sixty-four years old at the time of the accident, “he was in better health than he had been in his life, and that his physical conditions were very good.” There was, therefore, no proper case presented for the application of the rule requiring a longer stop for the plaintiff than for any other able-bodied man to get on the train, and certainly nothing which entitled this plaintiff to invoke the rule laid down as to sick, aged and infirm persons, delicate women and the lame. The instruction was therefore improperly given because there was no evidence in the case upon which it could be predicated.
III.
I think the damages are excessive. The petition claims $5,000 damages, of which $200 is claimed for medical services and medicines already paid, and $1,000 for the same hereafter to be expended, and $2,000 for loss of earning capacity. There was no testimony offered as to any money paid by the plaintiff for such medical services or medicines, nor that it will hereafter be necessary for him to incur such expense, nor that his earning capacity is permanently impaired, nor what his earning capacity was or the profits of his labor amounted to before the accident. Therefore his claim for $3,200 of the $5,000 damages claimed is eliminated from the case. This leaves only $1,800 of the $5,000 claimed, for his physical injuries, pain and anguish. The verdict is for $3,500, which therefore is $1,100 in excess of the damages claimed in respect to the only matter concerning which any evidence was introduced, and the verdict is therefore 'excessive to that amount, in any event. The plaintiff having separated his claim for damages in his petition, he is bound thereby.
Eor these reasons lj think the judgment of the circuit court should be reversed and the cause remanded.
Sherwood and Robinson, JJ., concur herein.