negligence

We cannot adhere to the doctrine that the attempt to voluntarily leave a moving train, regardless of the speed and circumstances under which the attempt is Leaving movmade, is negligence per se, and, if injury occurs in ing train not alighting by reason of the negligence of the em- per se. ployes of the railroad company, that there can be no recovery. Though that doctrine has been held in some cases, yet it is in opposition to the decisions of this court heretofore cited, and we think against the best considered cases of other states. In the case of New York, P. & N. R. Co. v. Coulbourn, 69 Md. 360, the court says: "The court rejected the defendant's fourth prayer, and in so doing we think it committed no error. By that prayer the court was asked to instruct the jury that if they should find that the car was moving at least at the rate of five miles an hour at the time the plaintiff jumped therefrom, then such act of the plaintiff was negligence on his part, and their verdict should be for the defendant. This prayer excluded from consideration all the facts and circumstances of the case under which the plaintiff acted, except the single fact that he jumped from the car when it was moving at the rate of five miles per hour; and, if the jury should find that fact, then the court was asked to say, as matter of law, there was such negligence on the part of the plaintiff as would preclude his right to recover, without regard to the other facts of the case; but, in our opinion, all the facts and circumstances of the case were properly left to the consideration of the jury, and it was for them to determine as matter of fact whether the plaintiff in jumping from the car acted as a reasonably cautious man would do under like circumstances." Cumberland Val. R. Co. v. Maugans, 61 Md. 53, 18 Am. & Eng. R. Cas. 182; Filer v. New York Cent. R. Co., 49 N. Y. 47; Pennsylvania R. Co. v. Kilgore, 32 Pa. St. 292; Clemens v. Hannibal & St. J. R. Co., 53 Mo. 366; Delamatyr v. Milwaukee & P. C. R. Co., 24 Wis. 578; Strauss v. Kansas City, St. J. & C. B. R. Co., 75 Mo. 185, 6 Am. & Eng. R. Cas. 384.

It is proper to consider the further question as to whether there was evidence to support the verdict of the jury, and whether the charges given by the court were ap plicable to the evidence. We have examined the Sufficiency of evidence. There was evidence from which the structions. jury might have reasonably found that Naas was

evidence-In

sick and in such a feeble condition as to require assistants to carry him on board the cars; that defendant's employes had knowledge of his condition at the time of selling him a ticket and contracting to carry him, and that the conductor was notified and saw the assistants carrying him to the cars, and

was directed by the agent to give plenty of time; that no time was given the assistants to leave the train; that the train was in motion by the time Naas was seated; that the train moved slowly until plaintiff was on the steps and in the act of stepping from the train, when the speed was suddenly increased. Some witnesses describe it as moving with a lunge; others, with a sudden motion; others, that it started suddenly, and that the other assistant, just in front of plaintiff, landed safely; and it may have been fairly found that the suddenly increased motion of the car threw the plaintiff upon the track, and, had it not been for that, he would have landed safely, and that the employes were guilty of negligence in so moving and running the train. There is no error in the record for which the judgment should be reversed. Judgment affirmed, with costs.

Passenger-Reasonable Time to Alight-Negligence.-Plaintiff, a passenger on a railroad train, sat near the front door of the car, and as soon as the train stopped at his destination he arose from his seat and proceeded to leave the car by the front door. When he had placed one foot on the last or lowest step and was proceeding to step off the car with the other foot which was on the next step above, he was, by a sudden jerk in starting, thrown to the ground and one of his feet was run over and crushed. Held, that as it was the duty of the company to give its passengers reasonable opportunity to leave its train at the station, the evidence was sufficient to sustain a verdict for the plaintiff. McDonald v. Long Island R. Co., N. Y. Ct. App., Second Div., November 26, 1889.

Injuries to Persons Assisting Passengers to Board Cars.-A person who enters a car for the purpose of assisting a passenger to obtain a seat, does not sustain such a relation to the company as imposes on it any extraordinary care, and it is not bound to give him special notice of the time of the departure of the train. If the company exercises ordinary care it is all that is required of it. Coleman v. Georgia R. & B. Co. (Ga.), 40 Am. & Eng. R. Cas. 690; Lucas v. New Bedford & T. R. Co., 6 Gray (Mass.), 64; so long as it has no knowledge that such person is aboard the train. Griswold v. Chicago & N. W. R. Co. (Wis.), 23 Am. & Eng. R. Cas. 463. But in Doss v. Missouri, K. & T. R. Co., 59 Mo. 27, it was held that a person who did not intend to embark as a passenger, but who had in charge a lady and her infant child who did so embark, was entitled to have sufficient time to escort the lady to her seat, and that if the time of stopping was too short, or if the agent of the road failed to give the usual notice of the stopping of the train, there was not an exercise of such ordinary care as the company was bound to employ. If a person boards the train for such purpose and attempts to leave it after it is in motion and under such circumstances as necessarily to expose himself to the risk of injury, he takes the risk of alighting while the train is in motion. Central R. & B. Cofv. Letcher (Ala.), 12 Am. & Eng. R. Cas. 115; Coleman v. Georgia R. & B. Co. (Ga.), 40 Id. 690; Keokuk Packet Co.. Henry, 50 Ill. 264; Lucas v. New Bedford & T. R. Co., 6 Gray (Mass.), 64; Doss v. Missouri, K. & T. R. Co., 59 Mo. 27.

JONES

v.

CHICAGO, MILWAUKEE & ST. PAUL R. Co.

(Minnesota Supreme Court, December 20, 1889.)

Passengers-Alighting from Moving Train-Conductor's Orders. It is negligent and unwarrantable conduct on the part of a conductor in charge of a train to notify or advise a passenger to leave the train while in motion, under circumstances likely to expose him to accident or injury.

Same Contributory Negligence-Presumption.-Unless a train is moving very slowly, and the circumstances are especially favorable, it is prima facie negligence for a passenger to attempt to alight or jump from a moving train. The circumstances may, however, be such as to render the question a proper one for the jury. He may be justified, in any particular case, in relying upon the superior knowledge of the conductor as to the speed and movements of the train, and other circumstances, and in following his directions, particularly when notified to act promptly, to prevent being carried beyond a station.

APPEAL from District Court, Faribault County.

Andrew C. Dunn, (H. H. Field of counsel,) for appellant. Lovely & Morgan, S. J. Abbott, D. F. Morgan and W. J. Trask for respondent.

Facts.

VANDERBURGH, J.-The plaintiff purchased a ticket at Wells for Winnebago City-towns on the line of the defendant's railway-took passage on a freight train, entered the caboose in the evening, fell asleep, and was asleep when the train arrived at Winnebago City. He did not wake up in time to get off while the train was stopping at the latter place; but, just as it was leaving, the conductor came into the caboose, and, according to the plaintiff's testimony, awakened him, asking: "Where are you going? Answer. Winnebago City." He then said: "You want to get off, and get off quick." "He said that two or three times." The plaintiff also testifies that he conducted him to the platform, "urged" him, and "seemed to be in a hurry;" that the night was very dark; that he knew the train was moving, but, he thought, very slow; and that he had not been notified that it had passed Winnebago City. The witness says, also, he cannot remember whether the conductor helped him down the steps, but says he had hold of his arm; but "the train gave a lurch, and he sort of pushed me, and I went off." On his cross examination he says that after they started for the rear end of the car the conductor said to him: "You had

better hurry up, and get off as soon as you can;" that witness supposed that the train was coming up to the platform at the station; that he got onto the rear step, and was going to get off there; and, he says, "the train gave a lurch, and I fell off, and he pushed me at the same time." This is the substance of plaintiff's version of the matter. He is contradicted upon the material points by the conductor, who apparently gives a very reasonable and consistent account of the transaction, and one which is essentially different from that given by the plaintiff. But it was for the jury to determine these matters of difference upon the whole case as submitted, and the trial court is so far satisfied with the verdict that it did not deem a new trial proper, either on the ground that the verdict was not justified by the evidence or on the ground of newly discovered evidence. The charge of the court is not returned, and must be presumed to have fairly presented the case to the jury. The defendant insists (1) that there is no proof of actionable negligence on its part; (2) that the evidence clearly establishes contributory negligence; and (3) that a new trial should have been granted on the ground of newly discovered evidence.

Leaving mov

ing trainConductor's orders.

The

I. Whether, upon all the evidence, it was considered by the trial court that the plaintiff was thrust off, or required to leave the train by the conductor, or whether he was simply notified by the conductor to get off, while the train was in motion, without being warned of the risk in doing so, we think there is sufficient evidence of negligence to support the verdict. conductor admits that the train had left the station, and was going 8 to 10 miles an hour at the time. It might be assumed that he knew the circumstances, and that he would not imprudently advise or direct a passenger to jump off a train, unless it was safe to obey his orders; and the passenger would naturally rely upon his judgment to a greater or less degree, according to the nature of the case. The evidence certainly tended to show that the language and conduct of the conductor in this instance were such as to authorize the plaintiff to conclude that he had a right to get off the train, and that he could safely do as he was directed. Bucher v. New York C. & H. R. R. Co., 98 N. Y. 131, 21 Am. & Eng. R. Cas. 361. The notification to leave the train under the circumstances, if acted on, was likely to expose plaintiff to danger and injury; and, if the evidence of the latter was true, it was reckless and unwarranted conduct.

2. Ordinarily a passenger would be held not to be justified in getting off a train while in motion, except at his own risk. Unlesss the train is moving very slowly, and the circum

Assumption of risk..

stances are especially favorable, it would be deemed prima facie negligence. It is not necessarily so, however; and the circumstances presented by the record were such, in this case, as to make the question one for the jury. He claims to have been mistaken as to the speed of the train. He was directed to make haste to get off. He might assume that the conductor knew all about the place and the movements of the train, and that it would be necessary to obey orders to avoid being carried beyond his destination. He was suddenly waked out of sleep, he says, and did not understand that the train was moving rapidly. These and perhaps other circumstances were proper to be considered, and were sufficient, we think, to justify the trial court in submitting the case to the jury. Filer v. New York Cent. R. Co., 49 N. Y. 51: Shannon v. Boston & A. R. Co., 78 Me. 60, 23 Am. & Eng. R. Cas. 511; Pool v. Chicago, M. & St. P. R. Co., 56 Wis. 236, 8 Am. & Eng. R. Cas. 360.

New trial.

3. The affidavits of several persons, whose evidence, it is claimed, can be procured at another trial, show that the account of the occurrence given to them by the plaintiff was different from that testified to by him upon the stand. This was, however, cumulative evidence of the same kind with that introduced on the trial. It was also in part contradicted, and in part attempted to be explained, in the opposing affidavits. The decision of the trial court, upon the record as presented, ought not to be disturbed by this court. Lampsen v. Brander, 28 Minn. 528; Peterson v. Faust, 30 Minn. 22. Judgment affirmed.

Passenger Leaving Moving Train by Conductor's Orders-Sufficiency of Evidence. Plaintiff, who was a passenger on a freight train, received injuries by jumping from it whilst it was in motion. He testified that he travelled upon the rear platform; that the conductor took up his ticket and that as he was approaching his destination, some person informed him that the train would not stop at the station, but that it would slow up and that he must jump. His testimony did not show that these directions were given by the conductor. The conductor and brakeman both testified that no such directions were given by them; that as the train approached the station the usual signal to stop was given, but that when the conductor went upon the platform of the car to look for plaintiff, he found that he had left the train before it stopped, and he thereupon signalled the train to go on. Held, that the evidence was not sufficient to show that the plaintiff jumped from the train whilst it was in motion by the conductor's direction, and that he could not recover. Herman v. Chicago, M. & St. P. R. Co., Iowa Sup. Ct.. Jan. 29, 1890.

Same-Exemplary Damages-Absence of Injury.-If, by inadvertence, the conductor fails to stop a train at a flag station, which is the destination of a passenger, and the passenger jumps from the train whilst it is in motion but sustains no injury therefrom, only nominal damages can be recovered; a verdict for exemplary damages cannot be sustained. Kansas City, M. & B. R. Co. v. Fite, Miss. Sup. Ct., Jan. 27, 1890.