The jury found for plaintiff $600. Defendant moved for a new trial, which the court granted unless plaintiff would write off from the verdict $216, which was done.The motion contains many grounds, those material being assignments of error on the following extracts from the charge of the court:“A railroad company is always liable upon the idea of negligence. The question is whether or not the road has been guilty of negligence, and such negligence as would cause the road to be liable. If the road used the reasonable diligence required in running its locomotives, cars and engines and has not been guilty of carelessness or negligence, or any improper conduct of its officers in running its cars and locomotives, then no recovery could be had. Look to the evidence and see whether or not the road has been guilty of carelessness, through their agents and employees; if they have, then the road would be liable. If the plaintiff, by ordinary care, could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. But in other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained. If you believe that she (plaintiff’s daughter) was guilty of carelessness in leaving the train while it was in motion, without any negligence on the part of the conductor, then no recovery could be had. Look to the evidence, and if you find the fact to be that the defendant was guilty of negligence, then your next inquiry would be what amount of damages was sustained.“ It is insisted that the conductor ordered the girl to get off of the train, and that if she did not get off he would put her off, and on the other hand that is denied, and it is also contended that a prudent person would not have obeyed that order. Whether or not that rule would apply depends on the age of the girl. It is not what a prudent man or woman would have done, but what a girl of her age, or ordinary prudence, would have done under the circumstances. If you believe that she foolishly or rashly jumped from the train, then they could not recover. If you believe the conductor ordered her off and through the excitement produced on the girl’s mind by the improper conduct of the conductor she jumped from the train and was injured, then the question with you is, not what a prudent man or woman would have done, but what she would have done under those circumstances. In passing upon this matter you are to take in the whole field; look to. all the circumstances of the case. What was the position of the conductor? What was the girl’s age, and what was her experience in travelling ? If you find that she was of tender years, and if the company has been guilty of negligence, keeping in view the age of the girl, ascertain if she exercised the proper forethought and care for her own safety in leaving the train, for one of her age.”DeLacy & Bishop, for plaintiff in error.Martin & Smith, contra.
