88 Ala. 256 | Ala. | 1889
Contributory negligence is relied on to defeat tbe action, wbicb is brought by appellee to recover for injuries alleged to have been caused by the mismanagement of defendant’s train, on which he was a passenger, while in the act of leaving the train. The charges given and refused raise the inquiry, whether the attempt of plaintiff to step from a moving car, under the circumstances disclosed by the evidence, was, per se, negligence.
Undoubtedly cases do arise, in which the facts are so clearly established, and the inference as to the course dictated by ordinary prudence so certain and invariable, that it becomes the duty of the court to take the question from the jury. The Central R. R. & Banking Co. v. Letcher, 69 Ala. 106, is one of this class of cases. There, plaintiff was not a passenger; the train was moving from a regular depot on its accustomed journey, at the rate of five or six miles an hour; the persons in charge were ignorant that plaintiff was on the train; without request or effort to arrest its progress, he walked out of the car on the platform, and to the rear platform of the next car, descended the steps with his right hand filled with papers, and jumped off at a right angle, a manner “almost certain to cause him to fall.” It was held that, under these circumstances, the court should have instructed the jury, plaintiff had no right of recovery. In Ricketts v. Bir. St. Railway Co., 85 Ala. 600, it is said: “Stepping from a moving car, without necessity,, when injury is caused thereby, which could have been avoided by remaining on the car — by the exercise of ordinary diligence— is negligence which will defeat a recovery because of prior negligence of the agents or servants of the company.”- This general observation had reference to a charge which instructed the jury, that plaintiff was not entitled to recover, if he was standing on the steps in front of the car, with a keg of lead in his hands, and undertook to step off while it was in motion, and such act was not that of an ordinarily prudent man, and he would not have been injured if he had remained on the steps; unless the injury was caused wantonly, recklessly, or intentionally. The question of negligence was
When the material facts are disputed, or, if clearly established, different inferences may be reasonably drawn therefrom, contributory negligence is a question of fact, exclusively within the province of the jury. This general rule is as applicable to the act of getting off a car in motion, as to other cases, unless the court is pf spared to lay down an inexorable rule, that, except in the well settled instance of leaping under the impulse of alarm, excited by sudden exposure to great peril, to alight from a moving car is negligence in law in all cases, and under any circumstances.
The undisputed facts are: that plaintiff was a passenger, having purchased a ticket for transportation from Union Springs to Inverness, both being regular stations on defendant’s road. When the train reached Inverness, it was stopped; and thereupon plaintiff promptly left his seat, and moved towards the front door of the car for the purpose of getting off. The train was started before he reached the door, and was moving when he passed out on the platform; and on being informed by a porter, who was standing oh the steps, that it was not to stop, or not longer than it had stopped, plaintiff descended the steps, his left hand holding the side rail, and stepped off in the direction the train was moving. He knew there was a bell-rope to signal the engineer to stop the train; but did not pull the rope, as the train was running so slowly he did not think there was any danger. The conductor knew that plaintiff was a passenger, and that Inverness was his point of destination. There is some variance in the evidence as to the length of time the train was stopped, and as to the rate of speed. The evidence on behalf of the plaintiff tends to show, that the rate of speed, was two and a half or three miles an hour, or, as one witness states, not more rapid than a fast walk; and on behalf of the defendant, that the rate was four or five miles an hour. It is conceded that plaintiff was injured in consequence of step
In determining whether there was contributory negligence, the fact that there was a • bell-rope, and plaintiff’s omission to resort to it to stop the train, should not be selected, and accorded conclusive or controlling force; but only the weight to which it is entitled on a consideration of its connection with the other facts, and of the relative bearing and influence of all attendant circumstances, each upon the other. Another and material element of consideration is, the effect upon the mind of the plaintiff produced by the failure of defendant to discharge the unquestionable duty to stop the train long enough to permit him, by the use of due diligence, to get off with safety, and by starting it while he was in the act of leaving the train. By the fault or neglect of defendant’s agents, he was placed in a situation that compelled him to choose between the delay, trouble and inconvenience of being carried beyond his stopping-place, and attempting to step off. The wrongful conduct of the company, whereby plaintiff was subjected to an election between two such courses to be pursued, must be taken into consideration. — Johnson v. West Ches. & P. R. R. Co., 70 Pa. St. 357. There is a recognized distinction between the cases where the company is, and where it is not, in fault. The argument, that if plaintiff had remained on the train, he would not have been injured, and would have had a right of action for having been carried on, does not, under the circumstances of this case, evoke favorable consideration. Stopping the train at Inverness was tantamount to a direction to the plaintiff to get off, and an assurance that reasonable time would be allowed for that purpose.
The general rule, established by the weight of authorities, is, that where the train is stopped at a station to which the company contracted to carry a passenger, the company is liable, if a reasonable time to leave is not afforded, and he is injured in the attempt to alight after it is started, and while in motion, if he does not, in getting off, incur a danger obvious to the mind of a reasonable man. — 2 Amer. & Eng. Encyc. Law, 762. But, notwithstanding the company may be in fault, a passenger is not justified, in order to avoid being carried beyond his stopping-place, to defy obvious danger, such as an attempt to jump from a train in rapid motion. But an attempt for such purpose is not negligence
As plaintiff was not at fault in starting to leave the train, the inquiry is, did he exercise ordinary care in stepping from the car after he discovered it was in motion. Under the circumstances disclosed by the evidence, this inquiry was properly submitted to the jury. Different minds may reasonably draw different inferences from the undisputed and the controverted facts.' — Strand v. Chic. & West Mich. R. R. Co., 28 Amer. & Eng. R. R. Cases, 213; Doss v. M. K. & T. R. R. Co., 59 Mo. 27; Jeff. R. R. Co. v. Hendricks, 26 Ind. 228; Penn. R. R. Co. v. Kilgore, 32 Pa. St. 292; Cen. R. R. Co. v. Able, 59 Ill. 131; Files v. N. Y. Cen. R. R. Co., 49 N. Y. 47; Lambetti v. N. C. R. R. Co., 66 N. C. 494; 31 Amer. & Eng. R. R. Cases, 50; 43 Amer. Dec. 364; 2 Wood’s Railway Law, 1130-1145.
Appellant further insists, there was contributory negligence on the part of plaintiff, consisting in riding on the platform while the train was moving, in violation of a regulation of defendant. In Ala. Gr. So. R. R. Co. v. Hawk, 72 Ala.. 112, it was held, that such a regulation is reasonable, and that a passenger, who is injured while standing on the platform of a car in motion in violation of the regulation, can not maintain an action to recover damages for such injury. In that case, the plaintiff went on the platform when the whistle was sounded half a mile from the station at which he intended to get off, and remained thereon until the train passed the depot, when he was precipitated, or fell. In this case, plaintiff went on the platform for the purpose of getting off, after the train was stopped, and remained thereon only long enough to ascertain that it was not going to stop any longer. The platform is the only mode of egress from the car, and if there was no negligence in undertaking to get off, certainly it was not negligence to use the only means provided by the company for doing so. Plaintiff was not riding on the platform in the meaning of the regulation.
Affirmed.
