INTERURBAN RAILWAYS - Negligence, Contributory.— A passenger on an interurban railway is not negligent in failing to ascertain that the place where he is invited to alight is dangerous, or the distance from the step to the ground. (p. 221.)

INTERURBAN RAILWAYS-Negligence-Measure of Recovery by Married Woman.—A married woman, seeking to recover from an interurban railway company, for injury received through its negligence is entitled to recover in her own right for physical pain, suffering and mental anguish suffered, but not for the loss of her earning capacity. (p. 221.)

TRIAL Verdict-Amount of Recovery-Instructions. It is improper to so state a limitation to the jury as to suggest a verdict for the amount claimed, but when the verdict rendered is for a much less sum than that claimed and is reasonable, it will not be disturbed. (pp. 221, 222.)

EVIDENCE.—Expert evidence, that plaintiff's injuries are due to some external violence, such as that which plaintiff suffered, is admissible, and does not usurp the functions of the jury. (p. 223.)

N. T. Guernsey, for the appellant.

Dowell & Parrish and Gillispie & Bannister, for the appellee.

15 MCCLAIN, J. Plaintiff, carrying an infant and a small satchel, and accompanied by another small child, attempted to dismount from defendant's car, on which she had been carried as a passenger to her destination at a country highway crossing, designated on her passage receipt as "Dailey's," and while doing so she fell and was injured. At this crossing, though it was designated on the ticket as a station, there was, as plaintiff well knew, no station nor station platform, but in the highway the approaches to the rails on either side had been planked by the company, and the highway had been graded up to the planks; and it was usual to stop cars so that passengers could dismount by stepping from the car steps to the approach to the crossing. The negligence of defendants as alleged consisted in not furnishing plaintiff a safe place to alight; in stopping the car several feet east of this planking and approach in the highway, so that plaintiff was required to step down a greater distance, on account of the surface of the highway being lower at this point than the end of the ties, and inviting plaintiff to alight at this point, which was an unsuitable place for alighting; and in not notifying plaintiff of the danger or rendering her assistance in alighting.

1. The request of defendant that the jury be instructed to return a verdict in its favor, on the ground that there was no evidence of negligence, was properly overruled. While it was not the duty of defendant operating a car which, for the

accommodation of passengers, was stopped at any highway crossing where they desired to alight, to provide a passenger platform at each of such crossings, it was its duty to exercise at least reasonable care to enable plaintiff to alight with as little danger as practicable, and if the care was stopped, and plaintiff invited to alight, at a place more 16 hazardous than that at which the car might conveniently have been stopped, then the defendant was negligent. The question was properly for the jury: Richmond City R. Co. v. Scott, 86 Va. 902, 11 S. E. 404; Cartwright v. Chicago & G. T. Ry. Co., 52 Mich. 606, 50 Am. Rep. 274, 18 N. W. 380; Bullard v. Boston & M. R. Co., 64 N. H. 27, 10 Am. St. Rep. 367, 5 Atl. 838. The cases relied on for appellant are those in which it is held that a street-car company is not liable to a passenger alighting from its car for injuries received after alighting, due to defects in the highway: See, for example, Bigelow v. West End St. R. Co., 161 Mass. 393, 37 N. E. 367; Scanlon v. Philadelphia Rapid Transit Co., 208 Pa. 195, 57 Atl. 521; Conway v. Lewiston etc. Horse R. Co., 87 Me. 283, 38 Atl. 110. In the case last cited it is said: "It should also be remembered that the defendant's cars were drawn by horses, and operated without regular stations or established places for passengers to get on or off the cars. They were not run from station to station only, but, upon signal or request, stopped as near the point desired as practicable either to take on or to discharge passengers. It was undoubtedly the duty of the conductor to exercise all reasonable care, diligence and prudence to ascertain the conditions existing at all points where the car was to stop, and otherwise to promote the convenience and guard the safety of passengers at all times when entering or leaving the car.” This language suggests a distinction which should be taken into account between street-cars operated in the streets of a city which are stopped on signal, and interurban cars operated through the country, and which may be stopped at highway crossings. Cars of the latter description are stopped at any highway designated by the passenger, but the particular place in the highway at which the car shall be stopped is under the control of the conductor or motorman, and care should be exercised to stop the car at such place as is reasonably suitable for the purpose, as safe a place as can be reasonably selected.

17 2. What has just been said as to the duty of defendant is applicable in considering the question whether there was contributory negligence on the part of plaintiff. The passenger alighting from a street-car does so at a place selected by

him through his signal, and may reasonably be required to look out that the street is in such condition where he attempts to step off that it is safe to use it; but a passenger on an interurban car, which is stopped for him to alight at a highway crossing, may reasonably assume that the car has been stopped in the portion of the highway where he is invited to alight, unless warned of danger, and is not conclusively negligent in accepting the invitation to alight at a place which is in fact unsafe. The question of contributory negligence was to be determined by the jury in view of the circumstances: Matthieson v. Burlington etc. R. Co., 125 Iowa, 90, 100 N. W. 51.

3. The court was not in error in failing to submit to the jury the question of assumption of risk. Plaintiff did not assume the risk involved in stopping the car for her to alight at a more dangerous place than that where it was usually stopped, for she had no knowledge of the added danger due to defendant's negligence. She had the right to assume that the car had not been stopped at a place for her to alight which was not the usual place and was more dangerous: Eastland v. Clarke, 165 N. Y. 420, 59 N. E. 202, 70 L. R. A. 751; Hogarth v. Pocasset Mfg. Co., 167 Mass. 225, 45 N. E. 629. As to the alleged negligence in not providing a safe place to alight, such as a platform or something equivalent to it, there could be no assumption of risk by a passenger, for, as will be hereinafter indicated, the defendant owed a duty to such passenger to furnish him a safe place for alighting, and the doctrine of assumption of risk does not apply "to a case where the negligent course of conduct which it is claimed had been assumed and recognized is connected with the discharge 18 of a general duty to the public": Carver v. Minneapolis etc. R. Co., 120 Iowa, 346, 94 N. W. 862.

The defendant owed the public duty to plaintiff to furnish her a safe place to alight at her destination fixed in the contract of transportation, and was not relieved of that duty by knowledge on the part of the plaintiff that it had not previously been discharging that duty as to herself or other passengers, stopping at that destination. That this is so must be self-evident, for, were it otherwise, the defendant could relieve itself entirely from the consequences of a violation of its duty to its passengers by so continuously and notoriously violating such duty, that the passengers would be charged with notice that the duty would not be observed. If plaintiff had known that she had been carried beyond the usual place for alighting, she would, no doubt, have assumed the risk of such

reasonably apparent dangers as were involved in alighting at such place; but the same facts would constitute contributory negligence, and there was no occasion to instruct on assumption of this risk, in view of the instructions given with reference to contributory negligence. Assumption of risk and contributory negligence are sometimes indistinguishable: 4 Thompson on Negligence, sec. 4611.

4. Error is assigned in submitting to the jury the question whether defendant was negligent, as alleged in her petition, in carrying plaintiff beyond the platform and regular stopping place at said station. Without now considering whether the planked crossing might not properly be designated as a platform, it is sufficient to say that, after telling the jury that they should "consider only the negligence alleged by the plaintiff in her petition as set forth in the statement immediately preceding these instructions," the court stated categorically the grounds of negligence which they could consider, and did not include therein the alleged negligence in carrying plaintiff beyond the platform. The jury could not have been misled.

19 5. Plaintiff specifically alleged negligence of defendant in not providing a suitable place at the station which was plaintiff's destination for her to alight, and the court submitted this question to the jury. Error is assigned on this instruction. As already stated, there was no station nor passenger platform at the highway crossing which was plaintiff's destination, although the place was designated on plaintiff's ticket by name as "Dailey's." The complaint is that by designating this place as a station, and telling the jury that if defendant stopped the car at this place for the purpose of having passengers alight therefrom, and invited plaintiff to alight at an unsuitable and unsafe place to discharge passengers from said car, and failed to furnish plaintiff a reasonably safe place to alight from said car, this would be an act of negligence on the part of the defendant, the court left it for the jury to say whether it was negligence on the part of the defendant not to have a station platform.

Now, it may be conceded that defendant was not bound to maintain a passenger platform at every highway crossing where it stopped its cars to enable passengers to alight at their request, and that it would be improper to instruct the jury broadly, in every case, that there was a duty on the part of defendant to furnish a safe place to alight wherever a car might be stopped, for such direction might be taken to authorize recovery for injury received in stepping from the

car step to the highway, no matter how carefully the place of stopping had been selected, on the theory that it was unsafe to step down even seventeen inches, the distance from the lowest step to the level of the top of the rail. The instruction referred to, which is too long to be set out in full, is not entirely clear as to whether the negligence therein referred to was in not furnishing a safe place in general for passengers to alight, or in not selecting a suitable place in the highway for that purpose. But, assuming that the jury could construe it as requiring defendant to furnish a safe 20 place in general, we think it was not erroneous as applied to the facts in this case. The contract was to carry plaintiff to "Dailey's," as a specific destination, which was thus indicated as a place where plaintiff might alight. This contract implied the duty to furnish plaintiff a safe place to alight at this destination: Dougherty v. Kansas City etc. Rapid Transit Co., 128 Mo. 33, 49 Am. St. Rep. 536, 30 S. W. 317; Missouri Pac. R. Co. v. Wortham, 73 Tex. 25, 10 S. W. 741, 3 L. R. A. 368;. Franklin v. Southern Cal. M. R. Co., 85 Cal. 63, 24 Pac. 723; Raben v. Central Iowa R. Co., 74 Iowa, 732, 34 N. W. 621.

With reference to the duty of defendant to furnish plaintiff a safe place to alight at "Dailey's," which was a place to which defendant specifically contracted to carry passengers, it was not error, therefore, to instruct that it involved the obligation to furnish them a safe place to alight. It does not follow that this duty involved the furnishing of a special platform in view of the nature of the transportation which defendant undertook to furnish, but it was for the jury to say whether, in view of the nature of the transportation, the place provided was a safe place. It may well be, as argued, that, at highway crossings not designated by the defendant as regular stopping places, it would not be negligent if it used due care in selecting as safe a place as practicable for a passenger to alight, although it did not provide any special conveniences or appliances for the use of passengers: Cincinnati etc. R. Co. v. Peters, 80 Ind. 168; Alabama etc. R. Co. v. Stacey, 68 Miss. 463, 9 South. 349. There was no error in the instruction as given under the record in this

case.

6. Exception is taken to an instruction with reference to the duty of defendant to furnish plaintiff assistance in alighting. In general, it is not the duty of the employés of a railroad company to give passengers such assistance: Raben v. Central Iowa R. Co., 74 Iowa, 732, 34 N. W. 621. But under