67 W. Va. 350 | W. Va. | 1910
Plaintiff was a passenger on one of the trains of the Norfolk & Western Railway Company on the 6th of April, 1906, going from the town of Welch to Davy in McDowell county, and in attempting to alight after the train had pulled out from Davy and was moving rapidly he 'was thrown violently to the ground and injured. He brought an action against the railroad company and recovered a verdict and judgment fdt $150. To this judgment defendant obtained a writ of error from this Court. There was a demurrer to the declaration which the court over
Should not the demurrer to the declaration have been sustained? Do not the averments in the declaration show such negligence in plaintiff as should prevent his recovery? If so, the declaration is bad, and the demurrer should certainly have, been sustained. The declaration, in part, is as follows: “Plaintiff avers that he went to the rear door of the car of defendant’s train, in order to get off, but finding the door locked, plaintiff started to return to the front door of said car, but by the time plaintiff had gotten half way from the rear door of said car to the front door of said car, the said train was starting from the station, and the conductor in charge of said train had closed the door, and plaintiff avers that then he informed the said conductor that he wanted to get off said train at the said station at Davj', and that he had been unable to get off said train on account of the rear door being locked and thereupon the said conductor opened the door of said car and plaintiff stepped down on the platform, holding to the guard and plaintiff avers that the said train was then running at a rate of speed which made it extremely dangerous for one to get off said train without suffering serious bodily injury. The conductor of said train, 'who had entire control of same.for said company, then and there directed the said plaintiff to get off said train, and refused to stop said train to enable said plaintiff to do so with safety, but told said plaintiff to jump; then said plaintiff then and there, under the direction of said conductor, endeavored as best he could to get off said train and used every care and precaution so to do without injury, but said train was running at such a rate of speed that in jumping from it to the ground, said plaintiff received great bodily injury and became sick, sore, lame and disabled for the space of three months,” etc. Do these allega-' tions not show that plaintiff himself knew at the time he attempted to alight from the train that it was dangerous to do so, and did he not himself assume the risk ? If so, he would not be entitled to recover, because in such case his own negligence is the proximate cause of his injury. We think these averments unquestionably show that plaintiff knew that it was then dangerous to undertake to get off the train, because of the speed at which it was then moving. Does the conductor’s- direction to
Some force, or threats to eject a passenger, must have been used before he can be justified in attempting to alight from a rapidly moving train. Railroad Co. v. Schaufler, 75 Ala.136; Railroad Co. v. Winn, 93 Ala. 306; Railway Co. v. Krouse, 30 Ohio St. 222. “If the car is in rapid motion, or other circumstances exist
In Hoylman v. Railroad Co., 65 W. Va. 264, the law is thus stated in the first point of the syllabus: “The general rule is that passengers getting off a moving railroad train are chargeable with contributory negligence and can not recover for injuries received therefrom.” We think. this law applies with full force to the present case because there is no allegation in the declaration which denies that plaintiff voluntarily assumed
. Inasmuch as the cause will be remanded with leave to plaintiff to amend his declaration, the only other assignment of error we will consider is the one relating to the giving of instructions Nos. 1 and 2 for plaintiff. No. 1 is as follows: “The court instructs the jury that the law in tenderness of human life and limbs, holds railroad companies liable for the slightest negligence, and compels them to repel by satisfactory proofs every imputation of such negligence. When carriers undertake to convey passengers by the powerful but dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence. Any negligence or default in such cases makes such carriers liable in damages undei the statute.” This instruction is correct as a general proposition of law, but to make it applicable to the facts in the present case it should have been qualified with some such 'language as follows, “provided, however, such negligence is the proximate cause of the injury complained of.” Even if defendant had been negligent in failing to stop at the station sufficiently long to enable passengers to alight such negligence could not have been the proximate cause of the injury. The jumping from the train while it was in rapid motion was the proximate cause of the injury, and the right of the case depends, as we have before said, upon the question whether or not plaintiff can show any lawful excuse for doing an act which is inherently negligent.
Instruction No. 2 is subject to the same objection as No. 1, because it assumes that the failure to stop the train at Davy long enough for the passengers to get off was the negligent act
The judgment of the circuit court of McDowell county, rendered on the 29th' of July, 1908, will be reversed, the verdict of the jury set aside, and the case remanded, with.leave to plaintiff to amend his declaration.
Reversed and Remanded.