23 S.W. 453 | Tex. App. | 1893
This is an action by La Prelle, against the appellees, to recover damages for personal injuries received by him while a passenger on the St. Louis, Arkansas Texas Railway, operated by the appellees. The appellant received his injuries in jumping from the train while in motion, and when the car in which he was riding was partially off the track. His purpose in leaping from the train was to escape the danger that might exist and he might encounter if he remained upon the train until the car completely left the track.
It appears that the train was approaching the bridge over the Brazos River when the car partially left the track, and the leap by the appellant was made just before the car reached the trestle or bridge.
The ninth subdivision of the charge of the court, among other things, instructs the jury, "that plaintiff, believing himself to be in imminent peril of his life, and acting under the impulse of an apparently well grounded fear, sought to escape such peril, and in doing so leaped from such car." etc.
The principal objection to this charge is, that it restricts the right of the passenger to leap from the car only when his life is in imminent peril. It is not only the peril to life that justifies the passenger in leaping, but the right exists to escape serious bodily injury. He can not justify his conduct in encountering a danger that the appearances of things reasonably indicate is greater than the danger he is seeking to avoid. But the danger he is seeking to avoid may reasonably indicate that, if encountered, would result in serious bodily injury — something less than death. In such circumstances he would have the right to avoid it, provided he did not encounter a greater danger in doing so than the facts and circumstances reasonably indicate existed.
For this error in the charge, the judgment below will be reversed and the cause remanded.
In view of another trial, we will call the attention of the trial court to some other parts of the charge that are complained of.
In defining a person of prudence, the court omitted to state a person of ordinary prudence, and instructed the jury what would be expected of a person of prudence. In submitting these instructions, it is best to accurately follow the law. It is what is reasonably expected of a person of ordinary prudence under like circumstances, is the demand of the law. A prudent person may mean a person of more than ordinary prudence.
That portion of the seventh paragraph of the charge is erroneous which says, "and you further find from the evidence that such injury was not caused by a failure on the part of plaintiff to use ordinary care and prudence at the time to prevent such injury." A technical objection to this charge, in the connection in which it is given, may be tenable, that it *395 shifts the burden of proof as to contributory negligence. It would probably have been free from objection if it had read, "unless you find from the evidence that such injury was caused by a failure on the part of plaintiff to use ordinary care," etc.
The judgment of the court below is reversed and the cause remanded.
Reversed and remanded.
