King v. Yazoo & Mississippi Valley Railroad

| Miss. | Nov 15, 1905

Truly, J.,

delivered the opinion of the court.

The facts of which appellant predicates her claim to recovery of damages for injuries suffered are as follows: She was a passenger on the train, intending to disembark at the town of Sidon. Upon reaching her destination the train went in on a sidetrack and stopped, and she, with other passengers, started to get off and walk to the depot, when a porter on the train — an employe of the appellee — directed her and the other passengers to remain in their seats, as the train would soon pull up and stop at the depot. When the train finally started again and had gotten near to the depot, the same porter announced the station and- told the passengers to get off, the train then moving very slowly. The other passengers, in obedience to the order, all disembarked in safety while the train was so slowly moving; but appellant, being the last of the passengers, was thrown .to the ground, as she attempted to alight, by a sudden start caused by the train going faster than it had been moving. Said train did not, in fact, come to a full stop at the station of Sidon. To the declaration setting out these facts the appellee interposed a demurrer, which was by the court sustained.

This was error. Under the facts stated, the question of whether the negligence of appellee’s employe was the proximate cause of the injury, or whether appellant was guilty of contributory negligence in attempting, as directed, to disembark from the train upon which she was a passenger while the train was slowly moving, and when it was manifest that, unless she did so disembark, she would be carried by and away from her destination, ought to have been submitted to the decision of a jury. We decline to hold that under any and all circumstances the attempt of a passenger to disembark from a slowly-moving train is per se such negligence as must inevitably preclude recovery. We quote from and approve the decision of this court in Wooten v. Railroad, 79 Miss., 36 (29 South. Rep., 61) : “We recognize it to be the general rule, and approve of it as wise and wholesome, that to board a train in motion is negligence as matter of law, so as to bar recovery for resulting damage. But this rule has its exceptions, and cases arise where the question should be left to the jury, and we think this record discloses such a case. In truth, where it is a passenger who attempts to get off or on a slowly-moving train, the instances are rare where the court should take the case from the jury, and it should only be done, in the case of a passenger, where the rashness in the act appears, so that a verdict for him ought not to be sustained. No fixed and invariable rule can be announced, since each case must depend on its own facts.” And we again affirm the doctrine there announced.

Reversed and remanded.