54 Ark. 25 | Ark. | 1890
The injury complained of was sustained by the plaintiff, a passenger on defendant’s cars, in attempting to alight at the end of her journey, while the cars were in motion. Two questions were therefore involved in the proper determination of the cause: First, was the injury attributable to any misconduct of the defendant? Second, did the plaintiff contribute to it by any negligence on her part? There was evidence tending to maintain a contention on each side of both of the questions stated, and the charge of the court was given with reference to every aspect of the evidence.
That is not the law. The conduct of the plaintiff must be judged from present conditions, and upon them the past delinquency of another sheds no light. If it would seem to a person of ordinary prudence and caution to be safe to step off, considering the train’s speed, the situation of the place of alighting, the opportunity to see where the step was made, and the activity of the person making it, and all other circumstances reasonably affecting the safety of the attempt—it could not be deemed negligence in the plaintiff to do it. But the failure of a train to stop does not justify an attempt to alight that is hazardous, nor is it an element to be considered in determining in any given case whether such attempt was prudent or hazardous.
We think the instruction fairly implied that a failure to make a sufficient stop fixed negligence upon the defendant and excused the negligence of the plaintiff. That was error.
For the error indicated the judgment will be reversed, and the cause remanded for a new trial.