
168 U.S. 339 (1897)
WARNER
v.
BALTIMORE AND OHIO RAILROAD COMPANY.
No. 82.
Supreme Court of United States.
Argued November 1, 2, 1897.
Decided November 29, 1897.
ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.
*344 Mr. Rodolphe Claughton for plaintiff in error.
Mr. G.E. Hamilton for defendant in error. Mr. M.J. Colbert was on his brief.
MR. JUSTICE WHITE, after stating the case, delivered the opinion of the court.
The peremptory instruction by the trial court and the affirmance of its action by the appellate court manifestly proceeded not on the theory that, as a matter of law, there was no negligence on the part of the defendant, but that the proof of contributory negligence on the part of the plaintiff was so conclusive as to leave no question for the consideration of the jury. Indeed, apart from any question which may have arisen from the proof as an entirety, and apart from the conflicting evidence as to the failure to give warning or proper signals, in the light of the ruling in Chicago, Milwaukee *345 &c. Railway v. Lowell, 151 U.S. 209, it is obvious there was no room reasonably to claim that it should have been determined, as matter of law, that the railroad company had not been negligent. In the Lowell case, as in this, it was shown that a rule of the company, applicable where double tracks were operated, prohibited any train, either passenger or freight, from attempting to run past a passenger train standing at a station for the purpose of receiving or discharging passengers, until the passenger train at the station had moved on, or signal was given by the conductor of the standing train for the other train to come ahead. Speaking of such a rule, and after declaring that it could not be seriously contended that the defendant was free from fault in failing to stop its train, in compliance with its own rule, the court said (page 217): "In view of the frequency of accidents occurring to passengers crossing one track at a station, after alighting from a train standing upon another track, the rule is doubtless a proper one, and if it had been observed on that evening this accident would probably not have occurred."
The cogency of this language applies with equal force to the state of facts disclosed in this record, where the station in which was the waiting room was so situated, and the trains of the company so operated, that passengers obliged to board a train which was to arrive and depart on the east track could not do so without crossing the west track, over which a train bound in an opposite direction was momentarily to arrive. If the stopping of a train at a station to put off a passenger, as held in the Lowell case, may, under certain circumstances, justify the passenger in presuming that it is safe for him to alight from the train away from a platform, and does not impose upon him in so doing the same degree of care and caution as would be imposed on him if he were not a passenger, it follows, necessarily, that the same rule would apply to one waiting at a station to take a train and who approaches the train he is to take when it arrives at the station.
The learned court below, in affirming the judgment of the trial court, principally rested its conclusion on the ruling in Elliott v. Chicago, Milwaukee & St. Paul Railway, 150 U.S. *346 245, and the authorities in that case referred to. But there the question for determination was the negligence of one not a passenger.
The duty owing by a railroad company to a passenger, actually or constructively in its care, is of such a character that the rules of law regulating the conduct of a traveller upon the highway when about to cross and the trespasser who ventures upon the tracks of a railroad company are not a proper criterion by which to determine whether or not a passenger who sustains injury in going upon the tracks of the railroad was guilty of contributory negligence. A railroad company owes to one standing towards it in the relation of a passenger a different and higher degree of care from that which is due to mere trespassers or strangers, and it is conversely equally true that the passenger, under given conditions, has a right to rely upon the exercise by the road of care; and the question of whether or not he is negligent, under all circumstances, must be determined on due consideration of the obligations of both the company and the passenger. As said by the Court of Appeals of New York in Terry v. Jewett, 78 N.Y. 338, 344:
"There is a difference between the care and caution demanded in crossing a railroad track on a highway and in crossing while at a depot of a railroad company to reach the cars. No absolute rule can be laid down to govern the passenger in the latter case under all circumstances. While a passenger has a right to pass from the depot to the train on which such passenger intends to travel, and the company should furnish reasonable and adequate protection against accident in the enjoyment of this privilege, the passenger is bound to exercise proper care, prudence and caution in avoiding danger. The degree of care and caution must be governed in all cases by the extent of the peril to be encountered and the circumstances attending the exposure."
And in the case before the court it was held to be a question for the jury, under all the circumstances, whether the plaintiff was chargeable with contributory negligence.
The doctrine of the Terry case was approved in Brassell v. New York Central &c. Railroad, 84 N.Y. 246, and is supported *347 by the following authorities: Atchison &c. Railroad v. Shean, 18 Colorado, 368; Phil. Wil. & Balt. Railroad v. Anderson, 72 Maryland, 519, 530; Balt. & Ohio Railroad v. State, 60 Maryland, 449, 463, 465; Pennsylvania Railroad v. White, 88 Penn. St. 327, 333, 334; Jewett v. Klein, 27 N.J. Eq. 550; Wheelock v. Boston & Albany Railroad, 105 Mass. 203.
To concede the rule, and, in a given case, to take a passenger beyond its protection by holding that one who goes in proper time to a station for the purpose of taking a train over the road and has a ticket for travel thereon, is not to be considered as a passenger until he has manifested by some outward act his intention to board a train and become a passenger, is to admit the rule on the one hand and on the other to deny it. It is also clear that to say that one who goes to a station to take a train must exercise the same circumspection and care as a traveller on the highway or a trespasser, unless by some implication the corporation has invited the person to deport himself as a passenger, and that such implication must be determined as matter of law by the court and not of fact by the jury, is, in effect, under the form of a qualification, to destroy the rule.
The situation of the tracks, the location of the station building and the waiting room, the coming of the local train and its stopping to receive passengers in a position which required the latter to cross a track in order to reach the train, involved necessarily a condition of things, which under one view of the testimony constituted an implied invitation to the passenger to follow the only course which he could have followed in order to take the train, that is, to cross the track to the waiting train. Whilst it is true, as was said in Terry v. Jewett, supra, that such implied invitation would not absolve a passenger from the duty to exercise care and caution in avoiding danger, nevertheless it certainly would justify him in assuming that, in holding out the invitation to board the train, the corporation had not so arranged its business as to expose him to the hazard of danger to life and limb unless he exercised the very highest degree of care and caution. *348 The railroad, under such circumstances, in giving the invitation, must necessarily be presumed to have taken into view the state of mind and of conduct which would be engendered by the invitation, and the passenger, on the other hand, would have a right to presume that in giving the invitation the railroad itself had arranged for the operation of its trains with proper care. The doctrine finds a very clear expression in a passage in the opinion in the Terry case, already referred to, where it was said (p. 342):
"It may be assumed that a railroad corporation, in the exercise of ordinary care, so regulates the running of its trains that the road is free from interruption or obstruction where passenger trains stop at a station to receive and deliver passengers. Any other system would be dangerous to human life, and impose great risks upon those who might have occasion to travel on the railroad."
When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. Grand Trunk Railway v. Ives, 144 U.S. 408, 417; Baltimore & Ohio Railroad v. Griffith, 159 U.S. 603, 611; Texas & Pacific Railway v. Gentry, 163 U.S. 353, 368. A like doctrine was thus expressed by the Supreme Court of Pennsylvania in Pennsylvania Railroad Co. v. White, 88 Penn. St. 327, 333, a case in many respects analogous to the present one:
"Negligence has been defined to be `the absence of care according to the circumstances,' and is always a question for the jury when there is reasonable doubt as to the facts, or as to the inferences to be drawn from them. When the measure of duty is ordinary and reasonable care, and the degree of care varies according to circumstances, the question of negligence is necessarily for the jury."
We think the case presented by the record is not one where the facts inferable from the evidence were such that all reasonable men would, of necessity, draw the same conclusion from them, and the question of negligence was not, therefore, one of law for the court.
*349 It is, therefore, ordered that the judgment be
Reversed, and the case remanded, with directions to grant a new trial, and for further proceedings in conformity to law.
MR. JUSTICE BREWER is of the opinion that the deceased was guilty of contributory negligence.
