in conflict with an instruction that it is its duty to keep the station properly lighted. ID.-INSTRUCTION AS TO ASSUMPTION OF RISK PROPERLY DISALLOWED.— An instruction based on the injured passenger's knowledge of the premises, and her assumption of risk, notwithstanding defendant's negligence in not lighting the premises, was properly disallowed.

APPEAL from a judgment of the Superior Court of Napa County, and from an order denying a new trial. Henry C. Gesford, Judge.

The facts are stated in the opinion of the court.

F. E. Johnston, and L. E. Johnston, for Appellant.

E. S. Bell, for Respondents.

HART, J.-This is an action to recover damages for personal injuries which the complaint alleges that the plaintiff, Annie E. Teale, suffered through the negligence of the defend

ant.

The jury by whom the issues of fact were tried found in favor of the plaintiff, awarding her damages in the sum of twenty-five hundred dollars, for which amount judgment was entered in her favor.

The defendant has brought the case to this court by appeals from the judgment and order denying it a new trial.

The complaint, which is in four counts, alleges (in the third count) that the plaintiff, on the evening of January 21, 1908, at the hour of seven P. M., having been on that day a passenger on one of the defendant's railway trains running between the city of Oakland and the town of Calistoga, in Napa County, in attempting to alight from said train at the depot in the last-mentioned place, fell to the ground and thereby sustained serious injuries to one of her lower limbs; that the accident thus happening was due to the culpable fault of the defendant because of its failure to maintain on said evening at said depot sufficient light to enable the plaintiff to see her way down the steps from the platform of the passenger coach in which she was a passenger to the ground.

The defendant, by its answer, besides specifically denying the material facts of the complaint, makes the charge that the

accident whereby the plaintiff was injured was the direct consequence of her own inexcusable fault, and, furthermore, that the circumstances disclose that she assumed the risk incident to the act resulting in the accident and its consequences.

At the close of the plaintiff's case, the fourth cause of action was, by stipulation, stricken from the complaint, and thereupon the defendant moved for a nonsuit as to the remaining causes of action on a number of specific grounds, the general effect of all which was that the evidence presented by the plaintiff in support of her complaint showed that the injuries sustained by her were not proximately caused either by the negligence of the defendant's servants and employees or by that of the defendant itself, but that, to the contrary, it thus appeared that the injuries so received were the direct result of the plaintiff's own negligence.

The court granted the motion as to the first and second causes of action, but denied it as to the third cause of action, which counts on the negligence of the defendant as the proxi mate cause of the alleged damage.

The principal point relied upon here by the defendant is that the evidence does not support the verdict, or, as the motion for the nonsuit necessarily implies, that plaintiff's own proofs disclose that the accident and consequent injuries to her would not have occurred but for her own inexcusable negligence or palpable want of ordinary care in attempting to leave the passenger coach.

It is further objected that the court committed error, seriously affecting the rights of the defendant, in certain portions of its charge to the jury and also in rejecting certain instructions which the latter requested it to read to the jury.

The evidence discloses these facts: That the plaintiff, who is a woman of advanced years and who had resided in Calistoga and vicinity for forty years, left Oakland, as the complaint alleges, on the afternoon of the twenty-first day of January, 1908, on one of the defendant's railway trains, for the purpose of returning to her home at Calistoga. From Vallejo Junction, to which point she was transported by said train, she was taken by one of the defendant's ferryboats across the straits of Carquinez to the city of Vallejo, where she boarded one of the defendant's train of cars directly plying between the said city of Vallejo and the town of

Calistoga. This train consisted of four cars a mail car, a baggage car, a smoking car and a passenger coach, the latter being the rear car of the train. The train reached Calistoga at 7:10 o'clock P. M., the schedule time. The day was stormy, a wind and rain prevailing at the time of the arrival of the train at Calistoga. The train stopped at the usual point on its arrival at the depot. Between the depot building and the track on which the passenger train went into Calistoga there were, at the time, some box-cars standing on a track-that is, on the track nearest the depot. When the passenger train came to a standstill, Mrs. Teale arose from her seat and, taking in her left hand a small valise or satchel and in the other carrying a suit-case of the ordinary size, started toward the front end of the passenger coach. Although there were some lights in the car and some in and about the depot building, when she opened the door of the coach to make her exit, she found it to be, as she described it, "pitch dark"-so dark, in fact, that, as she testified, "I couldn't see my hand before my face. It couldn't have been darker. I couldn't see the platform or the steps of the car." She stepped out on the platform, however, and, taking hold of one of the guard rails. maintained on either side of the steps, thus started to descend from the platform, and, in doing so, fell to the ground, whether from missing the lower step or miscalculating the distance of the latter to the ground, she was unable to say. The injury consisted of a sprain of the right knee, and from the effects thereof, she testified, she was still suffering at the time of the trial-nearly three years after the injury was received.

We shall not give a synopsis of all the evidence in this opinion. It is thought to be sufficient to say that, from the evidence, the jury were perfectly justified in finding that it was exceedingly dark at the point at which Mrs. Teale alighted or fell from the passenger coach. There can be no doubt that the night was naturally intensely dark, it being very cloudy and a drizzling rain falling; but there is some little doubt as to whether there were any electric lights operating at the time on the outside of and connected with the depot building. One of the employees of the defendant testified that, early that evening, he lighted a coal-oil lamp which was maintained at and on the outside of the building. It is quite clear from the testimony, however, that it was so dark at the

point where Mrs. Teale attempted to alight from the passenger coach that a person standing a distance of twenty or twenty-five feet from said point could not recognize an acquaintance at the steps of the car. This was shown by the testimony of Hawley Smith, a runner for a local hotel, who always met the incoming trains for the purpose of soliciting patrons. He stated that he was standing at about the distance above indicated from the steps by means of which Mrs. Teale attempted to reach the ground. He said there was no light at that point. He saw an object fall to the ground, but while, perhaps, he realized it was some person, he did not know who it was until he assisted Mrs. Teale to her feet. This witness could not say that there were any lights at the time on the outside of and connected with the depot building. He, in effect, stated, however, that, had there been such lights, reflection therefrom to the point where the accident occurred would have been obstructed by the box-cars referred to. From this testimony, as well as from other testimony in the case, the jury could have found that the condition as to darkness of the place where Mrs. Teale received her injuries might have been due either to one or both of two causes, viz.: 1. That there were no lights in operation on the occasion of the accident on the outside of and connected with the depot building; 2. That, if the usual lights were maintained by the defendant on the outside of said building on that evening, reflection there from to the point where passengers would naturally alight by means of the steps leading from the exit of the passenger coach in question was entirely obstructed by the box-cars standing on the track nearest the depot building or between the latter and the track on which the passenger train went into the depot that evening. At all events, the jury were justified in finding, and their verdict implies that they did so find, that the accident occurred by reason of the negligent failure of the defendant to maintain, at said time, sufficient light in and about its depot at Calistoga to enable passengers carried by it in its trains to said point to alight. therefrom, in the night-time, with safety. As to the evidence upon this point, therefore, this court is concluded by the verdict. And it will not be disputed that the defendant, in omitting, without just or legal excuse, to provide sufficient light to aid the passengers transported by it on its trains to alight

therefrom at night with safety was guilty of a violation of a plain legal duty it owes to passengers thus carried by it. "The law imposes on a railroad company engaged in carrying persons for hire, the duty of exercising reasonable care in keeping its platform, approaches thereto and station grounds, as far as passengers would naturally resort to them, properly lighted at night, for a reasonable time next prior to and immediately following the departure of trains, which its timecards specify will stop at night to take on or put off passengers." (Abbott v. Oregon R. R. & Nav. Co., 46 Or. 549, [114 Am. St. Rep. 885, 7 Ann. Cas. 961, 969, 1 L. R. A. (N. S.) 851, 80 Pac. 1012]; 3 Thompson on Negligence, sec. 2691; Louisville & C. Ry. Co. v. Lucas, 119 Ind. 583, [6 L. R. A. 193, 21 N. E. 968]; 4 Ellis on Railways, sec. 1641; Hutchinson on Carriers, 2d ed., sec. 516.)

The rule as thus stated is expressly indorsed by counsel for the defendant as setting forth, abstractly, a correct statement of the duty in the respect indicated which a railway company owes to passengers going on or leaving its trains; but it is contended that this rule is to be applied according to the conditions or circumstances of the particular case in hand, and that the station at Calistoga, on the occasion of the accident, when consideration is given to the conditions with respect to the character and extent of the business or traffic generally transacted and handled at said station, was sufficiently lighted to satisfy the law or to operate as a full compliance by the defendant with its duty, as prescribed by said rule, to the traveling public engaging its means of transportation. (St. Louis etc. Railroad Co. v. Marshall, 71 Kan. 866, [81 Pac. 169]; Falls v. San Francisco etc. R. R. Co., 97 Cal. 120, [31 Pac. 901].) Those cases hold, as is obviously true, that whether the railroad company, in the discharge of such duty as is involved here, has exercised that care with respect thereto-a reasonable degree of care-which the law imposes upon it, "depends upon the circumstances of the case -the nature of the road, and the character of the traffic and place where the accident occurred." (Falls v. San Francisco etc. R. R. Co., 97 Cal. 120, [31 Pac. 901].) Or, as the Kansas case, above cited, puts the proposition: "It is true, as the court said, that the proper character of the lights furnished at any particular station will depend upon the character and