Decided January 24, 1911.

On Motion to Dismiss.

[112 Pac. 1083.]

Opinion

1. Respondent Kearney on December 7, 1910, moved the court to dismiss the appeal in this case for the reason that appellant failed to file its brief within the time provided by rule 6 (50 Or. 572: 91 Pac. viii). It appears from the record that appellant’s brief should have been filed on or before November 27th; that on December 3d defendant made an application to this court for an extension of time until December 22d, in which to file its brief, which was granted on December 5th. From the showing made, there can be no question that the appeal has been taken [*14] in good faith. The default occurred through a misconception by defendant’s counsel as to the date from which the 30 days after the appeal was perfected should begin within which appellant must file its brief, and the showing made by appellant is sufficient to establish excusable neglect on the part of the counsel in that matter.

[*14] The motion to dismiss the appeal will be denied and defendant relieved from his default under the authority of Neppach v. Jones, 28 Or. 286 (39 Pac. 999: 42 Pac. 519); Wagner v. Portland, 40 Or. 389 (60 Pac. 985: 67 Pac. 300); Wood v. Fisk, 45 Or. 276 (77 Pac. 128, 738); and Johnson v. White (decided by this court January 24, 1911). Motion Denied.

Decided May 23, 1911.

On the Merits.

[115 Pac. 593.]

delivered the opinion of the court.

While the evidence might not appear to all minds to be conclusive, we are of the opinion that it was sufficient to justify the court in submitting the case to the jury. Plaintiff was standing in the door of the car immediately before the jerk of the train occurred, and a very few minutes after, when Hughes looked for him, he had disappeared; and the evidence tends to show that he was found just about where the witnesses locate the place where the jerk occurred. It is not unreasonable to suppose that he was thrown through the front door of the car upon the platform, and fell from there through the open south door of the vestibule, thereby receiving the injuries which he suffered. While it is true that courts will not accept evidence of witnesses which is contradicted by absolute physical facts, yet they are cautious in the application of this rule, and in the case before us it can have no application. A natural and reasonable inference from the facts testified to by plaintiff’s witnesses is that the jar of the train threw him forward, and that, burdened as he was with his suit case, he was unable to recover himself and fell off the platform through the side door. Accidents of this character, while infrequent, do happen sometimes. Thus in Fitch v. Mason City & C. L. Traction Co., 116 Iowa, 716 (89 N. W. 33), we have the case of a person sitting on a seat near the door of a car and being thrown bodily off the seat and out through the door upon the roadway beneath. In Coudy v. St. Louis Iron Mountain & Southern Railway, 85 Mo. 79, the plaintiff, a boy, arose from his seat to pick up a bundle that had fallen on the floor, when a sudden checking of the speed of the car threw him down the aisle, through the open door of the car, out upon the platform, and from there down the steps to the ground. These two instances came to the attention of [*17] the writer of this opinion while looking up other branches of this case, and the facts of both are more unusual than those upon which plaintiff predicates a recovery here, where in our opinion plaintiff’s theory seems a natural and reasonable one.

2. It is true that there is strong contradictory evidence on behalf of defendant; but where there is any evidence that reasonably supports plaintiff’s theory, the case must go to the jury, and its verdict is conclusive.

3. We think that there was evidence sufficient to go to the jury upon the question of negligence of defendant’s employees in leaving the'door of the vestibule open.

4. The object of having vestibuled trains is to assure the safety of persons who have occasion to gq upon the platform. Except at stations, it was the duty of defendant to use diligence to keep the vestibule closed, and there is some evidence tending to show a lack of diligence in this instance.

5. A vestibule with the doors closed cannot be said as a matter of law to be a dangerous place. In fact, it is nearly as safe as the car itself, and to leave the doors open when the cars were still in rapid motion was an omission from which a jury would be justified in inferring negligence.

It is urged that plaintiff was guilty of contributory negligence in going upon the platform. But, under the circumstances, we think this was a question of fact for the jury. There are many cases cited by defendant where it has been held to be contributory negligence for a person to ride upon an open platform or to attempt to alight from a moving train. But counsel has cited but one case where this doctrine has been applied to going upon a platform protected by a vestibule. This is the case of Ward v. Chicago & N. W. Ry. Co., 165 Ill. 462, (46 N. E. 365). The question here involved does not seem to have been involved in that case. The train had [*18] made a stop at a place not a station, and the plaintiff, supposing it might be the place of destination, stepped into an unlighted vestibule, and fell through a swinging door upon the ground. The court said that plaintiff had no business upon the platform, and had no right to attempt to leave the car, and that his doing so was negligence. The case is not clear, and is remarkable for its loose language and exquisite injustice, and is distinguished in Robinson v. Chicago & A. R. Co., 135 Mich. 254 (97 N. W. 689), where a contrary doctrine is held. The evidence does not show that plaintiff knew that either of the vestibule doors were open, though it is possible from the position of his two friends that his attention may have .been drawn to the condition of the north door. We cannot say that he was guilty of negligence in doing just what people very generally do when their destination is announced, get up, put on their overcoats, take their grips, and get as near the vestibule as possible, so as to be able to get off the car as soon as the train stops and the doors are opened.

6. At all events, his care or want of care was a question of fact for the jury and not of law for the court.

The judgment is affirmed. Affirmed.