Opinion,
Mr. Justice Green:
If the plaintiff’s husband was killed while he was attempting [20]*20to get upon a moving train, she cannot recover, because, notwithstanding the negligence of the defendant in having a defect in the platform, his death was caused in part by his own negligence, and the law will not discriminate between his negligence and that of the company. If there was doubt, or if there was conflicting evidence, as to his being engaged in an attempt to board the train while in 'motion, it would have been necessary to leave that question to the jury ; but, if there was no doubt about it, and the undisputed testimony proved it, it was the dirty of the court to pronounce upon it by a binding instruction to the jury to find a verdict for the defendant. This was what the learned court below did, and, upon a thorough examination of the testimony, we are convinced the court was right.
The first and one of the most important considerations upon this subject is that the plaintiff in her narr declares that her husband was attempting to get upon the defendant’s cars when the accident occurred. The language of the narr is that “ the plaintiff’s husband, Arthur Bacon, being lawfully upon the said platform at said station, as a passenger.on the cars of said defendant, and while in the act of walking upon said platform for the purpose of getting on the cars of said defendant, in the night-time, his foot sank into a hole in the said platform, thereby causing him to be thrown with force against and under the moving train of cars at the platform and station aforesaid, by means whereof the said Arthur Bacon, plaintiff’s husband, was greatly bruised, hurt, and wounded, so that afterwards, to wit, on the twelfth day of October, 1886, at the. county aforesaid, he died of said wounds.”
It is difficult to understand how there could be any more solemn assertion than this, by the plaintiff herself, that her husband received his injuries of which he died while walking upon the platform for the purpose of getting on the cars of this moving train. It is her declaration of her cause of action, upon which she asks the court and jury to act in adjudging her case. As a matter of course, it is binding upon her, not only because she asserts it, but also because, upon this subject, there is no issue between her and the defendant. The defendant also asserts, and gave evidence to prove precisely what the plaintiff alleged, to wit, that the injury was received while her husband was walking on the platform for the purpose of [21]*21getting on the cars of the defendant’s moving train. We know of no^ reason why this consideration alone does not dispose of the case. It is, however, very easy to show that all the evidence in the case, on both sides, tended to establish this averment of the narr.
The plaintiff herself testified that her husband had gone on an excursion train, which left Scranton at 8 o’clock in the morning to go to Hiawatha Island, expecting to return about the same time in the evening; also that he bought his ticket for the round trip from one of the members of the lodge. He was therefore undoubtedly intending to return upon the same excursion train upon which he left. All of the other testimony established that in the evening, on the return, the train stopped at Nicholson station, and in consequence of some defect in the pump of the engine it became necessary to attach another engine in front of the train. For this purpose, the train was backed up above the station, past a switch, over which the second engine could run on the track and then back up and be attached to the train. All this was done, and the train then started and ran on without stopping at the station. While the change was being made, a number of the passengers left the train, and stood upon the platform for some little time. Among these was the plaintiff’s husband. After the train had stood a short time at the depot, the conductor called out, “ All aboard,” twice, and many of the passengers got on. This was proved by overwhelming testimony, and was entirely uncontradicted. One of the witnesses, Lee, who was one of the excursionists, testified that the conductor said “ ‘ All aboard; wont stop when we get up to the station again,’—wanted everybody to get on. That is the way I understood it.” Then the train started to back up, and after the engine was attached, started to go on the return. The train was passing the depot at a moderate rate of speed, estimated at four or five miles an hour, when the deceased moved towards it, and attempted to get on.
The plaintiff examined two witnesses to prove what was done the moment before the accident. One of them, Seymour Pratt, said: “ My attention was called to a man that passed by me walking quite fast, middling fast, as the train was going, walking the same direction, and he turned facing the car, and caught his [22]*22foot, and fell between the car and the platform.” The witness, further said he did not know whether the deceased was trying to get on the train, or to see somebody, or what he was calculating to do. “ Q. Was the train going faster than he was, or was he going faster than the train ? A. About the same speed. Q. You say he was walking fast? A. Quite fast. Q. Did he catch hold of the rail? A. No, sir; I don’t think he did. Q. Did he reach for it? A. He reached out as he fell. Q. How far was he from the opening between the platform of the ears when he fell ? A. He was about the end of the cars. Q. That is, he was near the platform of a passenger car? A. Yes, sir.” There is no possible theory with which this testimony is consistent, except that the deceased was endeavoring to get upon the car when he fell. The other witness for the plaintiff upon this subject, W. S. Knapp, said: “I saw him a few minutes before he was hurt, and I saw him shortly after he was hurt; I was the second man that was up to him..... I saw him start toward the edge of the platform. What his object was, whether to get on the train, or what, X could not say, and I saw him act as though his foot was fast going like that (indicating) toward the train. Q. As he was falling? A. As he was falling.' That is all I can tell you about it.” This testimony also is consistent only with the theory that the deceased was endeavoring to get upon the train. He had a ticket which included his return to Scranton. He was one of the excursionists, and they were all returning by this particular train. He merely left the train temporarily, and got off on the platform at this small way station. There is not a particle of testimony that he intended to remain at the station or to leave the train at that point. On the contrary, all the testimony, as well for the defendant as for the plaintiff, shows with conclusive force that he was intending to return with the party and to get upon the train for that purpose.
According to the plaintiff’s witnesses, he was close to the train, walking fast. He turned towards the train, facing it, and reached out the moment before he fell. Lee, one of the defendant’s witnesses, was with him when the train was backing up. He was asked: “ Q. Did you get on? A. No sir; I took hold of this gentleman’s arm, and tried to walk down the track with him. Q. You walked down in the direction the train [23]*23was going? A. In the direction the train was backing up. Q. Whose arm did you take hold of ? A. Mr. Bacon’s, the gentleman that got killed; he was a friend of mine. Q. Where did you leave him ? A. He would not go any further; when we started off the platform, said he was not afraid; he was a trainman; he could jump a train anywhere. Q.
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Opinion,
Mr. Justice Green:
If the plaintiff’s husband was killed while he was attempting [20]*20to get upon a moving train, she cannot recover, because, notwithstanding the negligence of the defendant in having a defect in the platform, his death was caused in part by his own negligence, and the law will not discriminate between his negligence and that of the company. If there was doubt, or if there was conflicting evidence, as to his being engaged in an attempt to board the train while in 'motion, it would have been necessary to leave that question to the jury ; but, if there was no doubt about it, and the undisputed testimony proved it, it was the dirty of the court to pronounce upon it by a binding instruction to the jury to find a verdict for the defendant. This was what the learned court below did, and, upon a thorough examination of the testimony, we are convinced the court was right.
The first and one of the most important considerations upon this subject is that the plaintiff in her narr declares that her husband was attempting to get upon the defendant’s cars when the accident occurred. The language of the narr is that “ the plaintiff’s husband, Arthur Bacon, being lawfully upon the said platform at said station, as a passenger.on the cars of said defendant, and while in the act of walking upon said platform for the purpose of getting on the cars of said defendant, in the night-time, his foot sank into a hole in the said platform, thereby causing him to be thrown with force against and under the moving train of cars at the platform and station aforesaid, by means whereof the said Arthur Bacon, plaintiff’s husband, was greatly bruised, hurt, and wounded, so that afterwards, to wit, on the twelfth day of October, 1886, at the. county aforesaid, he died of said wounds.”
It is difficult to understand how there could be any more solemn assertion than this, by the plaintiff herself, that her husband received his injuries of which he died while walking upon the platform for the purpose of getting on the cars of this moving train. It is her declaration of her cause of action, upon which she asks the court and jury to act in adjudging her case. As a matter of course, it is binding upon her, not only because she asserts it, but also because, upon this subject, there is no issue between her and the defendant. The defendant also asserts, and gave evidence to prove precisely what the plaintiff alleged, to wit, that the injury was received while her husband was walking on the platform for the purpose of [21]*21getting on the cars of the defendant’s moving train. We know of no^ reason why this consideration alone does not dispose of the case. It is, however, very easy to show that all the evidence in the case, on both sides, tended to establish this averment of the narr.
The plaintiff herself testified that her husband had gone on an excursion train, which left Scranton at 8 o’clock in the morning to go to Hiawatha Island, expecting to return about the same time in the evening; also that he bought his ticket for the round trip from one of the members of the lodge. He was therefore undoubtedly intending to return upon the same excursion train upon which he left. All of the other testimony established that in the evening, on the return, the train stopped at Nicholson station, and in consequence of some defect in the pump of the engine it became necessary to attach another engine in front of the train. For this purpose, the train was backed up above the station, past a switch, over which the second engine could run on the track and then back up and be attached to the train. All this was done, and the train then started and ran on without stopping at the station. While the change was being made, a number of the passengers left the train, and stood upon the platform for some little time. Among these was the plaintiff’s husband. After the train had stood a short time at the depot, the conductor called out, “ All aboard,” twice, and many of the passengers got on. This was proved by overwhelming testimony, and was entirely uncontradicted. One of the witnesses, Lee, who was one of the excursionists, testified that the conductor said “ ‘ All aboard; wont stop when we get up to the station again,’—wanted everybody to get on. That is the way I understood it.” Then the train started to back up, and after the engine was attached, started to go on the return. The train was passing the depot at a moderate rate of speed, estimated at four or five miles an hour, when the deceased moved towards it, and attempted to get on.
The plaintiff examined two witnesses to prove what was done the moment before the accident. One of them, Seymour Pratt, said: “ My attention was called to a man that passed by me walking quite fast, middling fast, as the train was going, walking the same direction, and he turned facing the car, and caught his [22]*22foot, and fell between the car and the platform.” The witness, further said he did not know whether the deceased was trying to get on the train, or to see somebody, or what he was calculating to do. “ Q. Was the train going faster than he was, or was he going faster than the train ? A. About the same speed. Q. You say he was walking fast? A. Quite fast. Q. Did he catch hold of the rail? A. No, sir; I don’t think he did. Q. Did he reach for it? A. He reached out as he fell. Q. How far was he from the opening between the platform of the ears when he fell ? A. He was about the end of the cars. Q. That is, he was near the platform of a passenger car? A. Yes, sir.” There is no possible theory with which this testimony is consistent, except that the deceased was endeavoring to get upon the car when he fell. The other witness for the plaintiff upon this subject, W. S. Knapp, said: “I saw him a few minutes before he was hurt, and I saw him shortly after he was hurt; I was the second man that was up to him..... I saw him start toward the edge of the platform. What his object was, whether to get on the train, or what, X could not say, and I saw him act as though his foot was fast going like that (indicating) toward the train. Q. As he was falling? A. As he was falling.' That is all I can tell you about it.” This testimony also is consistent only with the theory that the deceased was endeavoring to get upon the train. He had a ticket which included his return to Scranton. He was one of the excursionists, and they were all returning by this particular train. He merely left the train temporarily, and got off on the platform at this small way station. There is not a particle of testimony that he intended to remain at the station or to leave the train at that point. On the contrary, all the testimony, as well for the defendant as for the plaintiff, shows with conclusive force that he was intending to return with the party and to get upon the train for that purpose.
According to the plaintiff’s witnesses, he was close to the train, walking fast. He turned towards the train, facing it, and reached out the moment before he fell. Lee, one of the defendant’s witnesses, was with him when the train was backing up. He was asked: “ Q. Did you get on? A. No sir; I took hold of this gentleman’s arm, and tried to walk down the track with him. Q. You walked down in the direction the train [23]*23was going? A. In the direction the train was backing up. Q. Whose arm did you take hold of ? A. Mr. Bacon’s, the gentleman that got killed; he was a friend of mine. Q. Where did you leave him ? A. He would not go any further; when we started off the platform, said he was not afraid; he was a trainman; he could jump a train anywhere. Q. What did you say to him when you took him by the arm to lead him down? A. I says ‘ Go, get on, because don’t you hear the conductor say he wont stop when he gets up again ? They will send down to Factory-ville for another engine.’ Q. After he left you or you left him, where did you go ? A. Got on the train.” The same witness said he saw Bacon again when the train came down, standing by the freight house door. “ Q. Alone ? A. Yes, sir; seemed to be. When I seen him he was making efforts to come towards the train. . . . He made pretty good time. I hollered at him, ‘Young man you cannot make that. Mr. Bacon, for God’s sake, stay back; you will get killed.’ He grabbed with his hands, and his foot did not make it.” Caygell, another witness for the defendant, was a member of the band that went with the excursion. He said: “ I heard the conductor holler, ‘ All aboard.’ He hollered ‘All board; ’ my partner with me said, ‘ Come, let’s go on;’ so I walked back with him. We got on, and when she pulled out again I stood on the steps of, I think it was the third ear, on the head end; and as we came into the depot, I noticed this gentleman, Mr. Bacon, talking with some ladies, and he seemed to bid them good-by, and came running forward to the car to the steps I stood on. As he came up he took hold of the hand-iron with his left hand, and instantly she bumped him off his feet and slammed him up against the side of the ear. Then he fell in behind the first wheels of that car. Then I jumped up and caught the bell wire, and pulled it, and that is all I know.” Sarah E. Pratt was one of the ladies with whom Bacon was conversing on the platform of the station, and she said: “ He stood there talking with us all the while that the train stood there, and while it backed up; and I don’t remember whether he started from us before the train came back or not, I cannot tell; and he walked down the track, and I saw him make the attempt to get on the train, and supposed he did..... Q. Whether the train was in motion, going rapidly or otherwise ? A. I thought it was going quite fast. Q. You say he [24]*24made the attempt to get on the train, just describe how he did that ? A. I saw Mm reach his hands out to take hoM of the car, and I supposed he got on the car.”
There was other testimony of a similar character, but it is not necessary to repeat it. There was no testimony of any kind, or from any witness, tending in the least degree to contradict the evidence as to Bacon’s attempt to get on the car the moment before he fell. It proves nothing to show there was a hole in the platform. While it is not at all certain that his foot was caught in the hole, it is a matter of no consequence in determining the question of the negligence of the deceased in attempting' to get on- board of a moving train. That attempt was an established fact, first asserted by the plaintiff in her narr, then proved substantially by her own witnesses on the trial, and proved most conclusively by other and disinterested witnesses for the defandant, who were entirely uncontradicted, and the whole of the oral testimony conclusively corroborated by all the attending facts and circumstances. This whole array of concurring proof shut out every inference or conclusion but the one that the deceased was attempting to board the train while it was in motion, and the court had no alternative except to pronounce upon the undisputed state of the testimony. It is not necessary to cite authorities that it is negligence for one to attempt to get upon a train of steam railroad cars while they are in motion.
Judgment affirmed.