dent rate of speed, and there was a failure to ring the bell or sound the whistle at the crossing; that the deceased had stopped on or by the side of the track in the way of the train (and at a place where, under the circumstances, a prudent man, having due regard for his safety, would not have stopped); that the track was open and he could have seen the train approaching for some distance, and in time to have gotten off the track, then he was guilty of contributory negligence, and the defendant is not liable, notwithstanding the negligence of his employees, and your verdict should be for the defendant.

"7. The law does not require railroad companies to station men at their depots for the purpose of keeping passengers off the tracks or warning them of the approach of trains, except it be at crowded depots in cities where there are numerous tracks.

"9. If the facts and circumstances in evidence in this case show that the deceased, at the time of the killing, was in a dangerous position, and was where a prudent man would not have stopped under the circumstances, and that this fact directly contributed to his death, then the plaintiff will not be entitled to a verdict on account of any negligence on the part of defendant's employees, unless the employees in charge of the train saw the danger deceased was in in time to have prevented the accident, and neglected to use all efforts in their power to avert the danger."

The court gave the first, third and fourth instructions. It refused to give the ninth instruction. It modified the fifth and sixth instructions, by adding the portion of said instructions in italics. And to the refusal to give the ninth, and the modifications of the fifth and sixth instructions, the defendant excepted.

During the closing argument before the jury, one of the attorneys for plaintiff made the following statement to the jury:

"I was the attorney for the defendant at the time Cavenesse was killed, and had been for eleven years, and I went with Col. Hartman, at the time the superintendent of the road, and investigated the case and advised him, Col. Hartman, at the time, that it was the worst case to defend that had occurred on the road."

Here the court, on its own motion, admonished the attorney that such a statement was improper, was not evidence, and told the jury that they should entirely disregard the same. Defendant's counsel also objected and excepted to the statement, whereupon plaintiff's attorney stated to the jury that his statement was not evidence, but was only made by way of argument, and that the jury would not consider it in any other light.

The jury returned a verdict in favor of plaintiff for five thousand dollars; and a judgment was rendered accordingly.

Defendant filed a motion for new trial, on the following grounds: 1. Error in giving the instructions asked by plaintiff.

2. Error in the instructions given by the court on its own motion. 3. In refusing the instructions asked by defendant, and in modifying defendant's instructions.

4. In refusing to exclude that part of Sherman Kirley's evidence objected to by defendant.

5. In admitting the evidence of F. T. Mathews as to the construction of the depot platform at Texarkana and on the V., M. & P. Railway, in Louisiana.

6. Verdict contrary to law and evidence.

7. Verdict excessive.

8. By reason of the statement made by plaintiff's attorney in his argument to the jury.

This motion was overruled, and the defendant filed a bill of exceptions and appealed.

It has been repeatedly held by this court, that "One who is injured by mere negligence of another cannot recover at law or equity any compensation for his injury, if he, by his own or his agent's ordinary negligence of willful wrong, contributed to produce the injury of which he complains, so that but for his concurring and co-operating fault, the injury would not have happened to him, except where the direct cause of the injury is the omission of the other party, after becoming aware of the injured party's negligence, to use a proper degree of care to avoid the consequences of such negligence." St. L., I. M. & S. Ry. Co. v. Freeman, 36 Ark. 41; Harvey v. Rose, 26 Ark. 3; Little Rock & Fort Smith Ry. Co. v. Parkhurst, 36 Ark. 377; Bauer v. St. L., I. M. & S. Ry. Co., 46 Ark. 388; St. L., I. M. & S. Ry. Co. v. Wilkerson, 46 Ark. 513.

"One who, by his negligence, has brought an injury upon himself, cannot recover damages for it. Such is the rule of the civil and common law. A plaintiff in such cases is entitled to no relief. But where the defendant has been guilty of negligence, also, in the same connection, the result depends upon the facts. The question in such cases is: First-whether the damage was occasioned entirely by the negligence or improper conduct of the defendant; or, Secondwhether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary care and caution, that but for such negligence or want of care and caution on his part the misfortune would not have happened. In the former case the

plaintiff is entitled to recover. In the latter case he is not." Railroad Co. v. Jones, 95 U. S. 439; Bauer v. St. L., I. M. & S. Ry. Co., supra.

Carriers of passengers are liable for negligence, but are not insurers of the safety of their passengers, as they are of goods, at common law. They are required to exercise a great degree of care and diligence in taking care of their passengers. It is their duty to keep their stations, and the approaches thereto, in such condition that those who have occasion to use these premises for the purposes for which they are designated, may do so with safety. It is their duty to provide safe and convenient means of entrance to and departure from their trains. But while these duties rest upon the carrier it is the duty of the passenger to exercise ordinary care and prudence in taking care of himself and avoiding injury;`and although the carrier be guilty of negligence, still, if the passenger by his own misconduct in failing to exercise ordinary prudence, directly contributes to the injury, he cannot recover. The duty of the carrier to keep its stations and approaches thereto in good condition and to provide safe and convenient means of entrance and departure, creates the reciprocal duty on the part of the passenger to occupy the premises provided for their use while waiting for trains, and in going to and from the carrier's depot, offices, platforms and trains, to use the ways and means provided for that purpose. Gonzales v. N. Y. & H. R. R. Co., 50 How. Pr. 216 (1); Mayo v. Boston & Maine Railroad, 104 Mass. 137(2); Wheelock v. Boston & Albany R. R. Co., 105 Mass. 203; Thompson on Carriers of Passengers, 233; Jeffersonville Ry. Co. v. Hendricks, 26 Ind. 228 (3); Beach on Contributory Negligence, 155.

In Pennsylvania R. R. Co. v. Zebe, 33 Penn. St. 326 (4), Mr. Justice Thompson, in delivering the opinion of the court, said: "The law implies in the contract of carrying passengers by railroad companies, that they shall provide a safe and sufficient road and cars, competent and careful conductors and hands, and safe and convenient means of egress and ingress to and from the line of their road. There must be no negligence on their part. There is also on the part of the

1. See the Gonzales case in 5 Am. Neg. Cas. 114, 119.

2. Mayo v. Boston & Maine R. R., 104 Mass. 137, is reported in 3 Am. Neg. Cas. 773.

3. Jeffersonville R'y Co. v. Hendricks, 26 Ind. 228, is reported in 3

Am. Neg. Cas. 70. See also same case, 41 Ind. 48, 3 Am. Neg. Cas. 106.

4. Penn. R. Co. v. Zebe, 33 Pa. St. 318, 326, is reported in 6 Am.

Neg. Cas. 232. See also same case, 37 Pa. St. 420, 6 Am. Neg. Cas. 243.

passenger an implied contract that he will and does 'assent to all the company's reasonable rules and regulations for entering, occupying and leaving their cars; and if injury befall him by reason of his disregard of regulations which are necessary to the conducting of the business, the company are not liable in damages, even though the negligence of their servants concurred with his own negligence in causing the mischief.' Sullivan v. Philadelphia & Reading R. R. Co., 6 Casey, 234, per Woodward, J. Here are reciprocal duties defined, resting upon principles most reasonable and of the clearest justice, and nothing but special circumstances, or the most pressing exigencies, which are not now foreseen, could justify a departure from them. Nothing of the kind marked the case in hand. But the court submitted the question to the jury, whether the parties in this case had not a right to leave the cars, either by the safe means provided by the company, or by a way not provided. The abstract question of their right to do so is one thing, and need not be disputed ; but the liability of the company by reason of their doing so is quite another thing. The regulation of the company for leaving the cars by the platform was apparent from its existence, and having been placed there and used for the purpose. This was the usual egress from the train. Without proof of any necessity, coupled with the proposition of their right to leave the cars at either side, the jury were, by the instruction of the court, allowed to find on the opposite of the principle laid down in the case of Sullivan v. Philadelphia & Reading R. R. Co., which declares that passengers are bound to conform to the regulations of the company on entering, occupying and leaving the cars. The duty being fixed by the relation of the parties to each other, the contract must be performed by both. A departure by either could be justified only by a paramount necessity. The question then for the jury should have been, first, as to the performance of the duty by the company in providing safe cars and safe means of egress from them; and, secondly, if this were so, was it the fault. of the company that the injury occurred? and to establish this, more was necessary to be proven than that the plaintiff and the injured son voluntarily chose to depart from the cars by an unusual way. There should have been proof of some existing necessity for their doing so, to excuse them from negligence and the consequences of it. Then, the question might have been left to the jury, as to the propriety of their violating the regulations of the company. A voluntary disregard of regulations providing for their safe exit by the platform was a disregard of their obligations to the company; and if it were so, the plaintiffs ought not to recover. We hold, on

these principles, that the company's liability could not be fixed for the injury consequent on a choice of the passenger in disregard of the provisions made by them for his safety and convenience. It was, we think, error in the court to submit the question of the rights of the parties to leave the cars at either side, in the absence of the proof of a justifying necessity in doing so. It was not negligence on the part of the company that they did not by force or barriers prevent the parties from leaving at the wrong side. People are not to be treated like cattle; they are presumed to act reasonably in all given contingencies, and the company have no reason to expect anything else in this case."

In Bancroft v. Boston & Worcester Railroad Co., 97 Mass. 275 (1), the facts were, that the plaintiff's intestate alighted from the defendant's car upon the platform at the usual stopping place. There were two parallel tracks at this station, lying in a deep cut. There were two stairways provided by the company, by which the highway above could be reached without crossing the tracks, but the most obvious way—which was neither of these—was to cross both tracks to a platform on the other side, and go up to the stairs which were in full view upon that side. This was the customary mode of exit, and was a fact known to the defendants. The last time this passenger was at the station it was the only means of reaching the highway, and he had no notice of any other way at this time. He walked to the rear of the train upon which he had come in, and which now began to move towards Boston, and crossed the track upon which the train was running. On coming up to the next track he could only see the track clear towards Boston, for a distance of eighty or one hundred feet, on account of a curve and bridges across the track. As he attempted to cross the second track, an outward-bound express train, going at the rate of forty feet a second, and giving no signal of warning, rushed upon him before he could get across the track. This train he saw when too late, and, throwing up his hands, made an ineffectual attempt to escape, but was fatally injured. The court held that the plaintiff was not in the exercise of due care. Chief Justice Bigelow, in delivering the opinion of the court, said: "The track of a railroad, over which frequent trains are passing, is a place of danger. A person who goes upon it unnecessarily, or without valid cause, voluntarily incurs a risk, for the consequences of which he cannot hold other persons responsible

1. Bancroft v. Boston & W. R. R. Co. 97 Mass. 275, is reported in 3 Am. Neg. Cas. 765.