Murray

(after stating the facts as above). [1] The rule respecting contributory negligence is clearly stated in 7 Am. & Eng. Ency. of Law (2d Ed.) 371, as follows:

It follows that the defense that tire injured person is chargeable with contributory negligence concedes that there was actionable negligence on the part of the defendánt. 29 Cyc. 506.

*707 [2] Whether in this case the invitation of the brakeman to the deceased to alight from the train on the side opposite to the station after the train had stopped, coupled with the act of the brakeman in opening the gate, trap, and door on that side of the train and then, while the train was still in motion, leaving the platform to announce the station in the smoking car, constituted negligence on the part of the brakeman, and whether that negligence was attributable to the defendant, are not questions to be now determined. It is assumed, without so deciding, that the act of the brakeman was such negligence. The question here is, Did the deceased fail to use ordinary care in his movements in going down on the steps of the car while the train was in motion, and thus become chargeable with contributory negligence? The train was a vestibule…