55 Kan. 491 | Kan. | 1895
The opinion of the court was delivered by
The first contention of the railroad company is that, upon the pleadings, judgment should have been given in its favor. The basis of this claim is that contributory negligence was set up as a defense in the answer of the railroad company, and that as there was no reply or denial of the averment of contributory negligence it must be taken as true. The petition alleged that the deceased was in the exercise of care when he attempted to alight from the train upon the order of the conductor, and the answer of the company contained a general denial of all the aver-
The next contention of the railroad company is that the conduct of the deceased in attempting to alight from the train on a dark night when it was in motion was reckless negligence, although he may have been invited or commanded by the conductor to do so, and therefore the court erred in refusing the request of the defendant to instruct the jury to return a verdict in its favor. On the night of March 19, 1890, John Hughes, his boy, who was about 11 years old, James O’Melia, his father-in-law, who was about 68 years old, and Alex. O'Melia, his brotlier-in-]aw, about 26 years
“ When, however, the passenger under the encouragement or instruction of the company’s servants makes the leap and suffers an injury therefrom, such an act on the part of the passenger is not generally held contributory negligence ; but when the passenger leaves the train voluntarily, even though at the suggestion of the conductor or other trainmen, while the train is in motion, it is a question for the jury whether he acted as a prudent man under the circumstances.” (Beach, Contr. Neg., § 148.)
‘ ‘ That there was more hazard in leaving á car while in motion, although moving ever so slowly, than when it is at rest, is self-evident; but whether it is imprudent and careless to make the attempt depends upon the circumstances. And where a party by the wrongful act of another has been placed in circumstances calling for an election between leaving the cars or submitting to an inconvenience and a further wrong, it is a proper question for the jury whether it was a prudent and ordinarily careful act, or whether it was a rash and reckless exposure of the person to peril and hazard.” (See, also, Railroad Co. v. Crunk, 119 Ind. 542 ; Nichols v. Railway Co., 68 Iowa, 732 ; Carr v. Railway Co., 58 Am. & Eng. Rld. Cases, 239 ; Odom v. Railroad Co., 14 S. Rep. 734; Carruth v. Railroad Co., 14 id. 736 ; Cousins v. Railroad Co., 56 N. W. Rep. 14 ; 2 Am. & Eng. Eneyc. of Law, 762, and cases heretofore cited.)
If the conductor hustled Hughes and (¡he other passengers from the cars at Peterton, in the darkness, as the witnesses for the plaintiff below have stated, he was certainly guilty of gross negligence, when it was his duty to exercise the highest degree of reasonable care in safely setting them down at the station, and, under the authorities which have been cited, it was clearly a question for the jury to determine whether Hughes was in the exercise of ordinary care when he obeyed the order of the conductor and attempted to alight from the train.
Some objections are made to the answers given by the jury to the special questions submitted, but we find nothing substantial in them. In response to one question the’jury answered that the body of Hughes was found from 60 to 90 feet below the south end of the depot, while most of the testimony, fixed the point'
The final objection is that the damages allowed are excessive. According to the testimony, Hughes was 40 years of age, a man of good habits, with good health and a sound body. He was an industrious man, who had been engaged in mining, and who had earned wages as high as $5 per day; and the jury
The judgment of the district court will be affirmed.