45 Ark. 256 | Ark. | 1885
There was no dispute about the cause of the injury in this case. The appellee jumped from a running; train, which, according to the testimony of most of the: witnesses, was under full headway at the time, and by his owru statement was moving at the rate of ten or twelve miles an hour. The appellee’s conduct in leaping from the train was. the proximate cause of the injury of which he complains, and the question with the court and jury on the trial, was, whether his action was justifiable or negligent.
The court at the instance of the appellee gave a long and somewhat complicated instruction to the jury, from which we-infer that it was intended to charge that it was negligence on the part of the company, to refuse to stop its train at the station of his destination, in order to allow appellee to alight^ and that this, coupled with the fact (if they should find it to be a fact) that he acted in obedience to the directions of the conductor in leaping from the train, would justify the act; and also, in the same instruction, that the leap was justifiable if the appellant so leaped under the reasonable apprehension that the conductor would eject him from the moving train unless, he left it voluntarily.
The first theory does not embody the law applicable to this, case, and the bill of exceptions does not disclose the evidence upon which the second could be based.
Where the risk or danger of alighting from a moving train is not apparent to the passenger, and he is urged to take the hazard by the company’s employes, whose duty it is to know the danger, and does so, his conduct will not be regarded as negligent. Where the danger is obvious, but slight, he has the right to rely upon the judgment of the conductor, whose duty and experience he may presume give a superior knowledge of such matters, and so justify an act which would otherwise be negligent. The cases of St. Louis, Iron Mountain & Southern Railroad v. Cantrell, 37 Ark., 419, and Memphis & Little Rock Railroad v. Stringfellow, 44 Ib., 322, are illustrations of this in our own reports.
Filer v. N. Y. Cent. R. R., 49 N. Y., 47, was a case of a passenger attempting to alight, while the train was in motion, in obedience to the directions of a brakeman. In disposing of the case, the court say: “That it Was culpable negligence on the part of the defendant to induce or permit the plaintiff to leave the train while in motion, and a gross disregard of duty not to stop the train entirely, and give her ample time to pass off with her baggage, is not disputed. Notwithstanding this, if the plaintiff did not exercise ordinary care, and might with ordinary care and prudence have avoided the injury, she is precluded from recovery.”
In Lambeth v. Railroad, 66 N. C., 494: “If the motion of the train was so slow that the danger of jumping off would not be apparent to a reasonable person, and the intestate acted under the instructions of the manager of the train, then the resulting injury was not caused by contributory negligence or a want of ordinary care.”
Ordinary care, in this case, was defined to be that degree of care which may have been reasonably expected from a sensible person in the passenger’s situation. A passenger cannot throw the responsibility of his own wanton and unreasonable acts upon the company, merely because a conductor has directed it. ■ “One who inflicts a wound on his own body must abide the suffering and the loss, whether he does it in or out of a railroad car.” Black C. J. in Railroad v. Aspell, 23 Penn. St., 147. “If while a train is at full speed, .the conductor should direct a passenger to jump out at a point extremely hazardous, it would hardly excuse the passenger from the legal consequences of contributory negligence if he acted voluntarily.” Railway v. Krouse, 30 Ohio St., 222.
“Had the cars been going at a rapid rate, the plaintiff must have known that she would be injured by leaping from them, and the attempt to leave the cars under such circumstances, even at the instance of the railway servants, would have'been a wanton and reckless act, and no recovery could have been had against the defendant.” Filer v. Railroad, 49 N. Y., sup.
The Appellee was not an infant or non compos. He was not put to a sudden election in an emergency to choose between the least of two impending evils. He had been informed by the conductor, soon after entering the train, that it was a through freight and that the station of his destination was not one of its stopping points. Just before reaching the station he was told the train would not stop. No check, he himself testifies, was made in the speed of the train, but he chose his ground when the station was passed, and leaped. It was a rash and reckless exposure of the person to peril, and the command of the company’s agent did not justify it. As was said in Railroad v. Jones, 93 U. S., 339: “As well might he have obeyed the suggestion to put himself on the track before the advancing wheels of the locomotive.”
To be forcibly ejected from a moving train would, obviously, be attended with more danger than to leap from it, and if the appellee had been justified in the belief that he would be ejected if he did not go voluntarily or without force, no blame could be attached to his conduct. In such case the railroad, being the author of the original peril, would be answerable for the consequences. Railroad v. Aspell, sup; Nelson v. A. & P. Railroad, 68 Mo., 593; Stokes v. Sattonstall, 13 Pet., 181.
It was upon this theory that the court instructed the jury at appellee’s instance, and upon its own motion they were told, that unless the appellee was “induced to jump from the train by reason of the orders, threats, show of force, language and manner of the conductor,” and that these were of such a nature as to cause a reasonable man to believe that if he remained on the train he would receive bodily harm or be forcibly ejected from the moving train. The latter instruction is open to the objection that it assumes as a fact that there were threats of violence and a show of using force by the conductor. It invades the province of the jury. Floyd v. Ricks, 14 Ark., 295; St. Bank v. McGuire, Ib., 537; Montgomery v. Erwin, 24 Ib., 543; Randolph v. McCain, 34 Ib., 702.
But the evidence would not warrant the jury iu finding that there were threats of violence or a show of force, and there is nothing disclosed in the record from which it could reasonably be inferred that the appellee would have suffered any bodily harm by remaining upon the train. These instructions would lead the jury to infer that the evidence tended to establish the facts hypothetically stated in the first, and assumed to exist in the other, and ought not to have been given. L. R. & Ft. Smith R’y v. Trotter, 33 Ark., 593; Lawrence Co. v. Coffman, 36 Ib., 641.
The appellee had not been directed or induced by any of the company’s employes to enter the train. He had made no effort to ascertain whether it would stop at his destination or not. It was his duty to do this. There were other trains going to his destination on the same day, and his mistake in taking a through train cast no obligation on the company to stop its train at a point the regulations of the road forbade, and the bare refusal of the conductor to do so was no direliction of his duty and was not negligence to be visited on the company. R. R. v. Nuzum, 54 Ind., 141; R. R. v. Hatton, 60 Ind., 12; Fink v. R. R., 4 Laus. N. Y., 147; L. R. & Ft. Smith R'y v. Miles, 40 Ark., 321, and cases cited; Marshall v. R. R., 78 Mo., 610.
The company offered to prove on the trial that the train in question was not only a through freight, not stopping at the appellee’s station, but also that it was not running on schedule time, but by telegraphic orders, and that the appellee’s station was not a telegraphic station. All of this was competent evidence, and should have been admitted. It was material to ascertain whose was the first fault, appellant’s or appellee’s, and if the appellant’s, then whether it would excuse the appellee’s. If the appellee, through his own neglect, had embarked on a mere wild train which the conductor could not delay without the danger of throwing the passenger and freight travel of the road into confusion, it was his duty to refuse to stop merely for a passenger’s accommodation. The fact that he took the appellee’s ticket could not alter the rule finder such circumstances. R. R. v. Hatton, 60 Ind., sup; R. R. v. Randolph, 33 Ill., 510, and authorities cited sup.
That the conductor’s conduct was rude and that he grossly violated the duty the carrier owes to its passengers, .the jury were fully justified in believing, and their just indignation at his conduct is evidenced in the round verdict they returned against the appellant; but the appellee’s suit is for a personal injury, which, as we have seen, was the result of his own misconduct, and not the consequence of the conductor’s acts.
For the errors indicated, the judgment will be reversed, and the case remanded for a new trial.
