| Miss. | Mar 15, 1901
delivered the opinion of the court.
We are unable to concur in the conclusion of the court below on the law and the facts which caused it to exclude all the evidence introduced by the plaintiff and to charge the jury peremptorily to find for the defendant.
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.
On the record before us there was evidence to show as follows : The defendant company had tickets for an excursion to Atlanta, Ga., but none for sale at its little station, Brooksville, and Mr. Wooten wanted to go with a part of his family on that excursion, and an arrangement was made to have tickets sent from Macon to Brooksville for his and their use, which tickets had to be signed by him before use. Accordingly the tickets were sent on the train which was to be taken by the party, and were sent in charge of the baggage-master. In order that the signature to the tickets might involve as little delay as possible, the agent at Brooksville had provided pen and ink and arm-rest just in the door of the depot. With the same object of preventing delay Mr. Wooten had a friend to see his wife, niece and granddaughter on the train. This gentleman, Mr. Calmes, testifies that he stopped at the car door, saw them enter, set down a basket of fruit, bid them good-bye and got off, and that the train then had begun to move. As the train came in Mr. Wooten and the station ticket agent were on the watch for
It is common observation that passengers, under stress of time, will get on and off of moving trains. Say what we will as to its prudence as an abstract question, it is human nature, and it is negligence in a railroad company to have a baggage truck so near the cars, after the train begins to move; and, but for this truck, it is fair and reasonable to presume that the catastrophe would not have occurred. But Mr. Wooten’s situation was even more urgent than .that of an ordinary passenger. He had arranged for tickets to be brought to him there. They were sent by the company. They were useless until he signed them, which he did as soon as he could, but the train actually started before his family were comfortably seated, before they could get their basket of fruit into the car.
Under these circumstances, with his wife, niece and granddaughter on the train, it is nearly sure that ninety men out of a hundred would have attempted to get on a slowly moving train. Such risks are certain to be taken even by the most prudent persons. This is known by all men and all railroad companies, and there should be a clear gangway, and the jury should have been allowed, as we think, to pass on the question of negligence in this particular instance, and to them should be left the question of whether the location of the truck was seen
Reversed cmd remanded.