69 Miss. 136 | Miss. | 1891
delivered the opinion of the court.
If the plaintiff’s evidence, taken alone, would not have upheld a verdict in his favor, then the peremptory instruction for the defendant was correct; otherwise, it was not.
The evidence of the plaintiff wras to this effect: That he had been admonished by the conductor of the train on which he was being transported as a passenger, after the engineer had given the customary signal of the approach of the train to the station to which plaintiff was to be carried, and at which he desired to disembark, that he, the plaintiff,, must hurry off, as the train did not have time to stop at the station then near at hand; that the train was running three- or four miles an hour; that plaintiff', as directed by the conductor, attempted to pass from the car in which he was sitting to the baggage-car to get his mason’s tools, preparatory to getting off', as ordered by that servant of the company; and that, in so doing, without fault on his part, he received the injuries complained of.
We are of opinion that this state of facts did not disclose negligence per se in the plaintiff. On the evidence of the plaintiff alone, the case was one peculiarly for the consideration of the jury; and whether, on all the evidence, the plaintiff'
One may avoid the charge of contributory negligence by showing that he received the injury complained of while performing an act required to be done by7 the defendant, such act not being apparently dangerous. Of course, if the act required to be done was plainly dangerous, no recovery could be had. For example, if the train in question had been running at the rate of twenty miles an hour when the plaintiff undertook to get ready to leave it, under the direction of the conductor, and he had received the hurt in attempting to jump from the train, the court might and should have declined to submit the question of contributory negligence to the jury. In this case there would be no-question of fact to submit, for the recklessness of behavior of the plaintiff’ in endeavoriug to jump from a train, under such circumstances, is manifest. But suppose, as in the case at bar, the train was only moving three or four miles an hour, and the attempt was not, even then, to jump from the ‘train, but, under the direction of the conductor, to pass from one car to another, preparatory to leaving the train, the plaintiff being about twenty years of age, a man well accustomed to railway travel, can it be affirmed that there was apparent danger, under this evidence, in attempting to obey the officer having charge of the train and the passenger? Or, rather, shall not this question and the question of the plaintiff’s negligence be submitted to the jury to be determined fn the light of the surrounding circumstances ?
It is said, however, by appellee’s counsel, that there was no question as to the apparent danger to plaintiff in attempting to comply with the conductor’s order, because the plaintiff, in his own evidence, swears he knew it was dangerous to attempt to obey the conductor. We do not so understand the matter. The plaintiff’s statement of his belief that the act was apparently dangerous is uot conclusive of that question. The real point to be considered is, not what the plaint
Reversed and remanded.