#### BALTIMORE & OHIO RAILROAD COMPANY *v.*MILLER.

Eailroads; Variance; Licensees; Negligence.

1. In an action against a railroad company for the death of plaintiff’s intestate, when the declaration confines the allegation of defendant’s negligence to the construction and maintenance of a station platform on which the decedent was walking when struck by a passing train of the defendant, it is error for the trial court to submit to the jury the question of the defendant’s negligence in the operation of the train at the time of and just before the accident.

2. Where a railroad station platform has been frequently used by the public as a pathway for convenience, a person so using it is not a trespasser, but is a mere licensee.

■3. In an action against a railroad company for the death of a girl, killed by a passing train while walking along a station platform too close to the track, it is error for the trial court to refuse an instruction asked by the defendant, to the effect that there is no evidence to show that the platform was negligently or improperly constructed, where it appears from the evidence that the platform had been in use for some years; that it was so constructed that persons walking or standing on its edge might be in danger of passing trains, which projected somewhat over the edge of the platform, but that the platform was erected for the accommodation of passengers getting on and off the trains, and not for use by the public as a sidewalk; and that the decedent was so using it for her own convenience, and not as an intending passenger. (Citing *Edgerton*v. *Baltimore & O. R. Co.*6 App. D. C. 516.)

4. The rule as to the contributory negligence of an adult is applicable to a girl sixteen years of age, where there is no evidence to show that she was of less than the ordinary intelligence, and unable to appreciate the danger of walking near a railroad track over which trains were constantly running.

No. 2262.

Submitted April 4, 1911

Decided May 1, 1911.

Hearing *on*an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action for the death of the plaintiff’s intestate.

*Reversed.*

*219The Court in the opinion stated the facts as follows:

This is an action by Fannie Miller, the mother and administratrix of Ethel Proctor, against the Baltimore *&*Ohio Railroad, to recover damages for negligently causing the death •of said Ethel Proctor.

The cause of action is thus stated in the declaration: “That on or about the 14th day of July, a. d. 1907, through the negligence, wrongful act, and default of the said defendant, the Baltimore & Ohio Railway Company, a corporation, its agents .and servants and employees, an injury was done in the said District of Columbia, which caused the death of the said Ethel Proctor, and said neglect, wrongful act, and default was such .as would, if the death of the said Ethel Proctor had not ensued, have entitled her to maintain an action, through and by her next friend, to recover damages against the said defendant.

“The plaintiff further says and avers the fact to be, that .heretofore, to wit, on or about the 14th day of July, a. d. 1907, in the District of Columbia, the defendant, its agents, servants, and employees, conducted, managed, operated, and maintained .a certain railroad station in the District of Columbia, known and designated as University Station, situated at and in Brook-land, in the District of Columbia, aforesaid; that it then and there became and was the lawful duty of said defendant, its .agents, servants, and employees, to have So constructed and maintained its premises that the life and limb of persons being thereon should be safe and secure.

“But the said defendant, its agents, servants, and employees, not regarding their said duty in that behalf, negligently, wrongfully, unlawfully, and improperly so constructed and maintained a platform and board walk on the premises aforesaid in such a reckless manner as that heretofore, to wit, on the 14th day of July, a. d. 1907, while the said Ethel Proctor, deceased, was walking on the said platform and board walk, parallel with the said track of the said defendant, a train of cars owned, operated, and controlled and managed by the said defendant, its agents, servants, and employees, did then and *220there, while passing -the aforesaid station, platform, and board waik, strike the said Ethel Proctor, who was moving in the same direction with the said train, with great force and violence, hurling her from the said platform and board walk, thereby inflicting upon and causing her to receive such injuries as that her death' resulted therefrom. In utter disregard of their duty in the premises aforesaid.

“The plaintiff further says: That the aforesaid injuries and death described and set forth is the sole result of the negligence, unlawful, wrongful act and default of the said defendant, its agents, servants, and employees.”

It appears that defendant has for some years maintained a station, called Brookland, on its Metropolitan line, used by trains going to and coming from the West. The station house is on the west side of the track, where the latter crosses Michigan avenue. There is a platform on the station side and one on the opposite side of the track, running along the same. The station, the platform, and the tracks between, are not in the street, but wholly upon property belonging to the defendant, north of Michigan avenue. Ordinary railway gates are maintained on Michigan avenue, on each side of the track crossing the same. A drug store is situated on the south side of Michigan avenue where it intersects the defendant’s right of way, which, on the north side of Michigan avenue, has a fence 14 feet from the eastern rail of the track. The platform on the east side was of boards, and about 150 feet long, and 6 or Y feet wide. It began about 30 feet from the gate on Michigan avenue. Some of the evidence tended to show that the platform was 5 or 6 inches higher than the rail; some, that the rail was an inch or an inch and a half higher. The witness for plaintiff supposed it was 5 or 6 inches higher than the rail, because it was easy to get on and off the steps of the ears. The boards extended to the rail. The bumpers of the engines, in general use, extend 18 or 19 inches over the platform. Between the outer edge of the platform and the fence is a cinder path.

Plaintiff’s evidence tended to show that deceased lived with plaintiff on Lynch’s farm, about two squares north of the *221station, on the west side of the tracks. Deceased was sixteen years old. On Sunday afternoon, about 6 o’clock, she and three companions started to the drug store on the opposite side of the tracks. After leaving the drug store they walked abreast, with locked arms, up the platform on the east side. Deceased was nearest the track. The Michigan avenue gates were down. A freight train had passed a short time before. The four were laughing and talking. A train came along behind them and the projecting bumper of the engine struck deceased, throwing her about 3 feet to one side, and causing her death. None of the three companions heard the engine whistle, or any noise of the coming train. None heard the electric bells at the gates ring, or the shouts of anyone to them to get out of the way. A witness for plaintiff testified that everybody used the pathway alongside the tracks. She had seen deceased walking on the platform before. She heard the train whistling away beyond her house, which is opposite the station house. Her daughter called her attention to the parties who were laughing and talking as they came along. Before witness could get to them the train came along and struck deceased. Cross-examined, she said that four could walk abreast on the platform, which was laid down on the ground approximately even with the rail of the track. The crossing policeman, Bradley, used to warn people of the platform, telling them it was dangerous to stand there. He used to speak to some people and tell them not to stand there so close.

Another witness for plaintiff testified that the train was a long excursion train, with two engines drawing it, and had not entirely passed the place where the girl lay before it stopped. Knew that when the cars passed some part of the engine, and the steps of the cars projected over the platform. First learned that a train would hit a person standing on the platform, when deceased was killed. Cross-examined, she said that she heard the whistle blow down at the signal post, a square, or may be two squares, away. Could hear it distinctly. Heard the electric bells ring at the crossing, but those bells ring any time. The gates were down, and she saw the train coming, but the *222parties had their backs to it. They were talking and laughing. A man with witness beckoned to deceased to get out of the' way. She paid no attention, and he started to her, but before-he got there she was struck. He said she was too near the-track, but witness said no, because she considered it safe. Deceased was walking on the last board, next to the rail, but not. exactly on the edge of the platform. Ee-direct examination, “The man and I were both on the platform. Deceased was. about half way the length of the platform, and I thought it a. safe place, looking in the direction from which the train came, you could see it for about a square and a half; it curves-down below Munro street.” Witness “hollered” before the-engine blew the distress-signal. The signal blew after deceased had been struck. Another witness had noticed after the accident that trains in passing would extend over the platform;, had not noticed it before, and had been living there ten years.. Cross-examined, said he supposed the distress signal blew about: the time the train crossed Michigan avenue. Did not know-exactly where the engine was when it blew the distress signal. Another witness testified that she heard the distress signal! blow after it struck deceased. Did not see the accident. The; train was a long one, with two engines, and when it stopped some of the coaches had not passed deceased; did not notice how-many.

Hpon the close of the plaintiff’s evidence, the defendant, moved the court to direct a verdict on the grounds that the deceased was shown to be guilty of contributory negligence; and. that no negligence had been shown on the part of the defendant.. This was denied.

Defendant then introduced evidence tending to show that, the deceased and her party were “rather hilarious, laughing- and joking and carrying on,” as they walked along. That it. was a heavy up grade, and the train was coming at 8 or 10 miles an hour, with a great deal of noise and blowing. The bells, were ringing, but this is such a frequent occurrence that they are not generally noticed. The gates were down and the gate-man had hold of the handle. Engine began to blow the distress-*223signal just before it struck deceased. -Train stopped quickly,, and over one half of it had not passed deceased, when it came to a stop. A path extended along the east side of the tracks that was used by most of the people living up there. There-were not many. There was no street. People walking along the path, when they came to the station, would walk along that platform. Bradley, a policeman, testified that there were fourteen coaches on the train. Two coaches were south of the point' where deceased lay when he arrived. (The train came from the south.) Heard the engine blow for the station, and heard the distress signals. There was nothing to prevent people using the cinder path alongside the platform, and most people used it; but people coming down the path along the track used to-walk over the board walk instead of the path. Frequently Warned people about being near the track and “skylarking” on the platform. Had arrested some. Another witness heard the-engine blow for the station, and then for the crossing. The bell on the gate rang. Heard the distress signal before the-train crossed Michigan avenue. Saw the girl on the platform, and started to her, thinking she was too close and might get hit. Yelled to her and waved hand to her to get away. None of the four looked towards the train.

The locomotive engineer testified that he blew for the station-as he approached, and also the crossing signal. As he crossed’ the road (Michigan avenue) saw some parties walking on the platform, kept ringing the bell, thinking every minute they would step aside. When he got close enough to see they were-not going to step away, he gave the warning whistle—a succession of short blasts—when the engine was 10 or 15 feet away. Had been ringing the bell as he approached the crossing. As soon as he saw she was in danger of being hit, put on the emergency brakes. When train stopped, supposed she was two or three car lengths from the second engine. The crossing wathman testified to hearing the electric bell ring. It was started by the coming engine. Immediately lowered the gates. The-party came out of the drug store, walked north of the gates, and got on the platform. Engine was nearly to the crossing. Heard *224whistle blowing. Bell was ringing at the time of accident. Heard the whistle for the crossing about a square and a half, or two squares, away. Train was a heavy one and made much noise. There was no other train at or near the crossing or station.

The defendant moved the court for a verdict on the pleadings and evidence, because of contributory negligence; because deceased was on the premises of defendant, not for the purpose of becoming a passenger, and defendant owed her no duty other than not to wilfully injure her after discovering her dangerous situation. The motion was denied.

Special instructions were prayed and refused. Among these, that, under the pleadings and evidence, the verdict should be for the defendant; submitting the issue of contributory negligence; and to the effect that there was no evidence in the case tending to show that defendant’s platform was negligently or improperly constructed, and that being the sole claim of negligence set up in the declaration ,the verdict should be for the ■defendant.

The following shows the colloquy between the court and •counsel in the presence of the jury, when the instructions were refused:

I think I shall have to instruct the jury, under this declaration and under this evidence, that if the engineer saw this girl in front of the engine, near enough to be struck, in time to have stopped his engine, or to have done something else that would have prevented her being struck, he was liable to .use all the care and diligence he could to prevent the accident, notwithstanding that she might be guilty of negligence at the same time. He says he saw her when he came up to the end of the platform, and that he was ringing his bell, and he thought she would get out of the way of the danger. When he got within 10 or 12 feet, he saw she had not gotten out of the way,, and then he blew his signal. Now, whether he should not have blown that distress signal when he was 100 feet away, coming tup to the edge of the platform, is a point for the jury. Wheth*225er he did everything he conld to prevent the accident is a question for the jury, under all the circumstances of the platform being built as it was and used as it was. Not only that, but the engineer saw this girl, saw the plight she was in. Did the engineer have a right to assume that she would be out of the way before he got to her ? After getting so near to her before he blew the distress whistle, whether or not he should have blown it when he got to the end of the platform across Michigan avenue, and whether he could have prevented the accident should he have exercised more diligence than he did, is a question for the jury.

*Mr. Colbert:*

There is no claim of that kind made in the declaration.

*The Court:*

There is a general claim on the part of the plaintiff.

*Mr. Colbert:*

No, sir; I think not.

*The Court:*

There is a general claim of negligence, describing what they claim to be negligence in the construction and use of the platform. As to that question of negligence on the part of the defendant as to having a platform built like such an inviting sidewalk as this, for the people to walk along 150 feet, of course I do not know that there was any negligence in builidng that sidewalk that way, but it created a situation there that ought to have put engineers and people handling trains there particularly on guard at that crossing, because here was a platform that people used as a sidewalk, right parallel with the track, right close to the track, and about the same height as the track, according to a good deal of this testimony. People were frequently on the platform, nearly always when they passed there, and of course that imposed upon the railroad company the duty of extraordinary care. Of course, decedent was entitled to exercise care. Both were entitled to exercise care, but it was a dangerous place, and it was created by the company for their own purposes, and yet allowed to be user1 *226by the public. So I think the whole question will have to go to the jury on that theory.

Defendant noted an exception to the statement that, under the circumstances, defendant, was required to use extraordinary care; for if any care was required at all, it was ordinary care. The court then said: “Well, I do not know about the ‘extraordinary care,’ but it should have used all the care it could possibly use in the case.”

In the general charge submititng the case, the court left it to the jury to determine whether the defendant was guilty of negligence either in the construction of the platform, or in the management of its train, or in both; and whether the death resulted from that negligence.

As regards contributory negligence, he charged that deceased was bound to use the reasonable care that any person of her age and understanding should use in approaching or going along a dangerous place. He added: “It may be that you would not require her to be as watchful as you would an adult person. In cases where children of seven years or less are injured, there can be no question of contributory negligence, under the law, because those children are supposed not to have judgment enough to look out for themselves, and adults have to look out for them. In cases of greater maturity, as this child was, of sixteen years of age, a different rule would apply. She may have to exercise a greater care, and she may be guilty of contributory negligence, if, under all the circumstances, you should find that she was guilty of contributory negligence.”

So much of this was excepted to, because it says that the same degree of care should not be expected from those sixteen years of age as from an adult.

The court then charged the jury to the effect that, notwithstanding contributory negligence, it was the duty of defendant engineer, after discovering the situation of the deceased, to exercise proper carp to prevent the accident; he would be guilty of ngligence in not exercising all the care that he could. * * * “So that you are to look to the whole sitúa*227tion here, look at the construction of the platform, its use, the knowledge of its use and character, the people passing up and down there, the time of day, the speed at which this train was going, and what was done by the engineer, if anything, to prevent the accident after he saw the danger that the girl was in. Taking all these conditions into consideration, you will make up your minds whether, or not this plaintiff ought to recover anything of this defendant.” Counsel for defendant “noted, an exception to that portion of the oral charge that states that the declaration alleges negligence in the management of defendant’s train. My understanding is that there is no such claim in the declaration. Second, that there might be a recovery if the defendant was guilty of negligence in the operation of his trains; and next, I except to that portion of the court’s oral charge which treats of contributory negligence as being overcome, or dispensed with, under the doctrine of last chance.”

The jury returned a verdict for the plaintiff, and from the judgment thereon the defendant has appealed.

*Mr. George E. Hamilton, Mr. M. J. Colbert, Mr. John J. Hamilton,*and *Mr. John*W. *Yerkes*for the appellant.

*Mr. John E. Collins, Mr. Harry A. Clarke,*and *Mr. Bernjamin L. Gaskins*for the appellee.

Mr. Chief Justice Shepard

delivered the opinion of the Court:

1. We are of the opinion that the court erred in submitting to the jury the question of the negligence of the defendant in the operation of the train at and just before the accident.

This issue was not raised by any allegation of the pleadings. As shown by the extract from the declaration, heretofore given, the plaintiff strictly confined her allegation of negligence to the construction and maintenance of the plat*228form on which the deceased was walking when struck by the passing train.

2. It was error, also, to refuse the third instruction prayed by the defendant. The platform had been in use for some years, for the purposes intended. There was no evidence whatever tending to show that there was anything unusual either in its construction or location, much .less tending to show fault or negligence therein. Without some evidence from which such negligence might be inferred, it is improper to let a case go to the jury to be determined by surmise or conjecture. *State use of Egner*v. *United R. & Electric Co.*98 Md. 397-401, 56 Atl. 789; *Dotson*v. *Erie R. Co.*68 N. J. L. 679—686, 54 Atl. 827. In both of these cases, persons on a similar platform, intending to become passengers, were struck by passing cars which protruded over the edge of the platform, a slight distance in the second case, and about 18 inches in the first.

In the case at bar, plaintiff’s intestate had no intention to become a passenger. She and her companions were using the platform as a pathway for convenience., on their way home from the drug store. While, under the evidence of frequent use of .the platform as a pathway by persons similarly situated, she may not be regarded as a trespasser, she was nothing more tiran a mere licensee, and entitled to care as such. *Redigan*v. *Boston & M. R. Co.*155 Mass. 44-47, 14 L.R.A. 276, 31 Am. St. Rep. 520, 28 N. E. 1133; *Dotson*v. *Erie R. Co.*68 N. J. E. 679—684, 54 Atl. 827. The sole feature of negligence alleged is the construction of the platform so near the track that a person walking or standing on the edge thereof might be in danger from a passing train. It was not erected, however, to be used as a sidewalk by the public generally, but as a platform for the accommodation of passengers getting on and off trains. Considered in the light of its intended use, its proximity to the rail could not be held faulty or negligent construction as matter of law; and to permit a jury, in the absence of some evidence, to indulge its opinion or conjecture in determining whether it was or not, would be to establish an unreasonable rule. The responsibility of a railway company in. respect of *229the location of its passenger platforms along its tracks ought not to be made to depend upon the varying notions and opinions of juries. One jury might consider the plan and location of a particular structure to be faulty and negligent; another might not. Each case involving the same construction would depend upon the motion or opinion of the jury impaneled to try it. A change made to conform to the opinion of one jury might later meet with the condemnation of another. In *Dotson*v. *Erie R. Co. supra,*the court considered the duty of a railway company in the matter of platforms at stations, and having said that it was its duty to maintain such as shall be safe for the use of passengers, proceeded to say: “But this use is to be exercised in conformity to the manifest purpose for which the structure in question is adapted. And so, a railroad company is only required to build platforms of sufficient dimensions to accommodate passengers getting on and off at their stations. [Citing Cases.] It is manifest that this duty requires the railroad company to construct its platforms sufficiently near to the rails that it will afford to passengers, including the aged and infirm, a safe exit to and from the trains. And it is a matter of common knowledge that, in performing this duty, the platforms along the best regulated railroads are built so near the rails that the projections from the engines and the cars will overlap to some extent the edge of the platform. While the1 extreme edge of the platform is perfectly safe for passengers, when occupying it for the purpose to which it is manifestly adapted, it is a matter of common knowledge that it is a place-of danger when occupied while trains are passing or likely to-pass.” Several decisions to the same effect are reviewed in. the opinion of the court. In *State use of Egner*v. *United R. & Electric Co.*98 Md. 297, 56 Atl. 789, plaintiff’s intestate-was standing on a platform by the side of an electric railway,, intending to take passage with his family. Two cars were; signaled in turn, but passed without stopping. The third one,, though signaled, passed at a speed of 30 or 35 miles per hour.. The platform, about 15 feet long and 4 feet wide, was situated: so near the rail that the footboard or step of the passing car *230extended over it about 18 inches, leaving a space 2-| feet wide, on which persons could stand in safety. It had been in use for several years with safety .to persons standing thereon. Egner was struck by the car and killed; none of the others was injured. There being no other evidence relating to the platform, the court affirmed a judgment for the defendant, entered on a directed verdict. See also *Edgerton*v. *Baltimore & O. R. Co.*6 App. D. C. 516. In that case plaintiff’s intestate had been struck and killed by a passenger train while standing near the edge of the station platform. No negligence in the construction of the platform was alleged, but it was claimed that there was negligence in running the train rapidly by the same at the time, and under the circumstances. A verdict had been directed on the ground of deceased’s contributory negligence, and the judgment thereon was affirmed. A single case is relied on by the appellee as establishing a doctrine contrary to those above cited. *Dobiecki*v. *Sharp,*88 N. Y. 203-207. That the decision states a somewhat stricter rule than the others in respect of the obliga^ tion to one intending to become a passenger on one of defendant’s trains, and occupying the platform for that purpose, may be conceded. In the light of the evidence as to the purpose of the use of the platform in this case, that question is of no importance. On the question actually involved here, the case is not in point. The party was struck by a passing train while standing on the platform. Parts of the cars extended from 3 to 5 inches over the platform. The evidence is not recited in the report of the case, but the opinion states that there was evidence tending to show improper construction of the cars, and later it was said: “The contention that the plaintiff was bound to show something more than an improper construction of the platform or cars, and that she was bound to prove that this negligence was the cause of the injury, is sufficiently answered by the remark that some of the evidence tended in that direction.”

3. It appears from the plaintiff’s evidence that deceased was sixteen years of age at the time of the accident, and there was no evidence tending to show that she was of less than ordinary *231intelligence, and unable to appreciate the danger of walking near a railway track over which trains were constantly passing. There was nothing, therefore, to take the case out of the rule applicable to- adults under like circumstances. It is unnecessary to consider other questions that have been argued.

For the reasons given, the judgment will be reversed, with costs, and the cause remanded for a new trial. *Reversed.*