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person under similar circumstances would have so believed and so acted. This practically nullifies the force and effect of the statute and leaves it for the jury to determine when they will apply the statute and when not. It is a very simple and easy matter by observing outside objects or the earth itself to tell when a train is at a standstill, and it imposes no hardship upon a passenger to require him to be certain as to that before entering upon the platform. The carrier owes no duty to be upon the lookout for passengers who violate the printed rule and go on the platform when prohibited, and the engineer and those in charge of the train have a right to suppose that passengers will remain in the car until it comes to a full stop, and they have a right to act accordingly. The statute contains no exception to its general provision, and in plain terms relieves the company from liability in the case of a passenger injured while on the platform of a moving train when the company, as in this case, has complied with its terms.

In Denny v. Railroad, 132 N. C., 340, it is held that a passenger who voluntarily goes upon the platform of a moving train for the purpose of alighting at the station, and is injured by reason of a jerk in the train, is not entitled to recover therefor, and Mr. Justice Connor, speaking of the duty of the engineer, says: "He cannot be supposed to know or anticipate that passengers, in defiance of the rules, have gone upon the platform and are standing upon the steps of the car while in motion." See also Railroad Co. v. Hawk, 72 Ala., 112. In the case before us, as in Denny's case, there is no suggestion that the conductor was upon the platform and no evidence that plaintiff was invited to go out there preparatory to leaving the train.

The fact that the porter called out the station name before reaching the station was no invitation to go upon the platform, for at that time the train was running rapidly, and only after

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the announcement did it begin to slow down. In Smith v. Railroad, 88 Ala., it is said: "The mere announcement of the name of a station is not an invitation to alight; but, when followed by a full stoppage of the train soon thereafter, is ordinarily notification that it has arrived at the usual place of landing passengers. * * * Comparing all the cases, we deduce that, when the name of the station is called, and, soon thereafter, the train is brought to a standstill, a passenger may reasonably conclude that it has stopped at the station, and endeavor to get off, unless the circumstances and indications are such as to render manifest that the train has not reached the proper and usual landing-place." To the same effect are the following cases: England v. Railroad, 21 N. E., 1; Railroad Co. v. Holmes, 97 Ala., 332; Mitchell v. Railroad, 51 Mich., 236; Railroad v. Green, 25 Am. St. Rep., 255; Minock v. Railroad, 56 N. W., 870.

It is contended by defendant that there is a material variation between the allegation of the complaint and plaintiff's proof, in that she alleges in her complaint that the train was moving when she entered on the platform, and in her testimony she states that it was at a standstill. It is unnecessary that we consider this, as the complaint may be amended before another trial.

New Trial.

HOKE, J., dissenting: I cannot concur in the decision of this case, and am of opinion that by an erroneous application of a wholesome principle the decision of the Court may work great injustice to the plaintiff in the further trial of the cause.

The objection urged against the validity of the present trial and held for error in the opinion of the Court is that the charge of the Judge contravenes a rule of the company made and posted pursuant to the statute, Revisal 1905, 2628, which

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forbids passengers from going on the platform when the train is in motion.

I think the statute is a wise one, and the rule a reasonable regulation when reasonably interpreted; but I cannot think that any correct or reasonable interpretation of this rule would uphold or sustain the objection made to the charge on the facts of the present case.

These facts show that about a mile from Matthews Station there had been a washout which had been recently repaired, and the employees of the defendant had been instructed, or were accustomed to stop or slow down at this place. There was no testimony that plaintiff was aware of this custom or of these instructions.

The theory and testimony of the plaintiff was that at the time of the occurrence plaintiff was a passenger on the defendant road, going from Charlotte to Matthews, a station about ten miles out, in the night-time. On approaching Matthews, near which town she lived, the porter on the train came through the first-class car where plaintiff was and called out "Matthews." The train immediately began to slow down, and plaintiff got up from her seat and started to go out. She had her grip in her hand and her baby on her arm as she went towards the front door; and by the time the plaintiff had reached the front door the train had almost stopped, and when witness got to the platform it had stopped. The train then gave a violent jerk and plaintiff was thrown down and seriously injured.

Another witness for the plaintiff said that the train had slowed up and looked to him like it stopped when it got even with the washout, and then gave a sudden jerk and went forward.

Yet another witness for plaintiff stated that the train had gotten very slow at the washout, but he did not think that the train had quite stopped.

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The theory of the defendant was that the train had never gotten slower than five miles an hour at this point, the testimony of the defendant being that it was running from five to ten miles an hour.

Presenting the theory and testimony of the defendant, the Court charged the jury, among other things, that the general rule is that passengers who are attempting to go on or off a moving train in violation of the rules of the railroad company cannot recover for injuries received by them. This being so, if the jury find that at the time plaintiff was injured there was a printed notice posted up in a conspicuous place warning passengers not to go on the platform while the train was in motion, and plaintiff went upon the platform, under the erroneous impression that it was slowing up for her station, and while upon said platform plaintiff was thrown therefrom as a result of a sudden jerk or movement of the train, which was slowing up for a washout, then the Court charges that the plaintiff was guilty of contributory negligence in going on the platform while the train was slowing up; which negligence on her part would be the proximate cause of the injury, and the jury should answer the second issue "Yes." That even though the jury should find that the defendant was guilty of negligence in failing to warn the plaintiff that the train was slowing for the washout, and not for the station, or in causing the train to be suddenly and violently jerked forward while at the washout, yet, if the jury find that plaintiff went on the platform of the car while it was in motion in violation of the printed regulation of the company, posted in a conspicuous place in the car, and was injured on account of a sudden jerk or movement of the car while on the platform preparing to alight, then the Court charges the jury that the plaintiff was guilty of contributory negligence, which would be the proximate cause of the injury.

Again, if the jury find, by the greater weight of the evidence, that there was a rule properly posted in the car, for

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bidding passengers to go on the platform while the train was in motion, and she went on the platform while the train was running from five to ten miles an hour and was thrown, in that event she would be guilty of contributory negligence. In presenting the theory and evidence for the plaintiff, the Court charged the jury as follows:

"If the jury shall find, by the greater weight of the evidence, that shortly before reaching Matthews, on the night referred to in the complaint, the defendant's employee went through the passenger coach in which the plaintiff was riding and called 'Matthews,' and that immediately thereafter the train began to slow up, and gradually ran slower and slower, until it came to a full stop, and that the plaintiff, while the train was slowing up, went towards the platform, believing that the train had stopped for the station, and in so doing acted as a reasonably prudent person would have acted under the same or similar circumstances, and while so upon the platform the train, without warning to her, was suddenly jerked forward by the defendant's employees, and by reason of said sudden jerking forward the plaintiff was thrown from the said platform to the ground, and thereby injured as alleged in the complaint, then the jury are instructed that this was negligence on the part of the defendant, and they will answer the first issue 'Yes.'"

And further, at the request of the plaintiff, gave the following special instructions:

"If the jury shall find that, when the plaintiff went upon the platform, she did so in the bona fide belief that the train was not in motion, but that it had come to a full stop, and that a reasonably prudent person, under the same circumstances, would have so believed and so acted, then you are instructed that section 2628 of the Revisal of 1905 would not apply, although the train had not actually come to a full stop; and, in this view, if you find that the defendant was guilty of