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VICKSBURG, SHREVEPORT & PACIFIC R. Co.

(Louisiana Supreme Court, October, 1889.)

Passengers Jumping from Moving Train-Failure to Stop at Station.— While it is the duty of a railroad company to stop its train at the station to which it has contracted to carry a passenger, and to land him safely and conveniently, yet the fact that the company neglects this duty, and its train passes the station without stopping, does not justify a passenger in jumping from the moving train, unless expressly or impliedly invited to do so by the employes of the company.

Same-Contributory Negligence. The plaintiff's act in jumping from the moving train was purely voluntary, uninfluenced by any invitation expressed or intended by the company's employes, and excused by no impending danger or necessity of any kind, except his simple unwillingness to be carried beyond his destination; it was imprudent and dangerous, and his action for resulting injury is barred by his own contributory fault. WATKINS, J., dissenting.

APPEAL from District Court, Parish of Webster.
Watkins & Watkins for plaintiff.

Wise & Herndon and F. P. Stubbs for defendant.

Facts.

FENNER, J.-On the 16th of October, 1886, plaintiff was a passenger on defendant's train, having purchased a ticket from Bodeau station to Doyline station. The latter is a flag station, at which trains do not stop unless they have passengers to put off or take on. If a signal is given from the station that there are passengers to get on, the engineer blows two whistles to signify intention to stop. If there are passengers to put off, the conductor notifies the engineer by pulling the bell rope, and the engineer, on receiving such signal, blows two whistles to signify the same intention. If there are no passengers to take on or put off, only one whistle is blown, and the train does not stop, but simply slackens speed to a rate of eight or ten miles an hour in passing the station, to enable the mails to be thrown on and off. On this occasion the train had been compelled to come almost to a stop about 200 yards from Doyline, on account of some oxen which were on the track. It then moved forward again, and the conductor, knowing he had this passenger to put off, attempted to signal the engineer with the bell rope, but, owing to some tangle or disarrangement, could not do so, consequently the two whistles were not blown. The conductor, the engineer, and the porter all agree on this point, and there is no contradictory statement. The porter only calls out flag sta

tions when there are passengers to put off and the signal to stop is blown. The plaintiff testifies that the porter did pass through the car, and call out Doyline station, but this the porter positively denies, and considering the uncontradicted testimony that no signal to stop was given, the fact is of little importance. The consequence was that the train passed by the station, only slacking its speed, as customary, but not stopping. The plaintiff having several times made this same trip, and knowing his station, went out on the platform of the car for the purpose of getting off. He went down on the steps of the car, and, after passing a little beyond the station platform, seeing that the car did not stop, and, as he says, supposing that it was intended that he should get off, and that he could do so with safety, he stepped off while the train was moving; and he says that, as he was in the act of doing so, the train accelerated its motion, giving a sudden jerk, which threw him, and broke his ankle, occasioning the injuries for which his present action in damages is brought. He says that, just before he stepped off, some one called to him, "Is not this your station?" which acted in determining him to step off; but the evidence leaves no doubt that the person who asked the question was not any employe of the company. The conductor says that, having failed to give the signal, he went through the train, after passing the station, to find plaintiff, intending to back the train up to the station, and put him off, but failed to find him, and supposed he had gotten off when the train had stopped on account of the oxen on the track.

Jumping from
Failure to

moving train

Under these facts, the fault of the company, in not stopping its train, cannot be disputed. It was bound, under its contract, to stop, and safely discharge its passenger. But did its negligent failure to discharge this duty justify the plaintiff in jumping off the moving train, or absolve him from the charge of contributory stop. negligence, which under the settled jurisprudence of the court, is a bar to his recovery? We consider the law to be settled by the overwhelming weight of authority that while a railroad company is bound to stop its train at the station to which it has contracted to carry a passenger, and to land him safely and conveniently, the fact that the train is about to pass such a station without stopping does not justify the passenger in jumping off the moving train, unless expressly or impliedly invited to do so by the company.

A leading case on the subject, which we select from a multitude of authorities, not only on account of the great lawyer who delivered it, (Judge BLACK,) but also because it has been expressly quoted and af

Authorities

examined.

firmed by this court, lays down the principle, in a state of facts

strikingly similar to those before us, as follows: "The plaintiff below was a passenger in defendant's cars from Philadelphia to Morgan's Corner. The train should have stopped at the latter place, but some defect in the bell rope prevented the conductor from making the proper signal to the engineer, who therefore went past, though at a speed somewhat slackened on account of the switches which were there to be crossed. The plaintiff, seeing himself about to be carried on, jumped from the platform of the car, and was seriously hurt in the foot. * * * Persons to whom the management of a railroad is intrusted are bound to exercise the strictest vigilance. They must carry the passengers to their respective places of destination, and set them down safely, if human care and fore

sight can do it. * * * But they are answerable only for

* *

*

the direct and immediate consequences of errors committed by themselves. They are not insurers against the perils to which a passenger may expose himself by his own rashness and folly. * * * From these principles it follows very clearly that if a passenger is negligently carried beyond his station, where he had a right to be let off, he can recover compensation for the inconvenience, the loss of time, and the labor of travelling back, because these are the direct consequences of the wrong done to him. But, if he is foolhardy enough to jump off without waiting for the train to stop, he does it at his own risk, because this is gross imprudence, for which he can blame nobody but himself." Pennsylvania R. Co. v. Aspell, 23 Pa. St. 147.

This court long ago laid down the like doctrine in the following language: "If the daughter of plaintiff voluntarily jumped from the cars when in motion, even though it was the constant habit of the company to stop at that place, the leap not being made to avoid an imminent impending peril, produced by the misconduct of defendants, but to avoid being carried beyond her destination, she was herself guilty of such imprudence as relieves the company from the consequences of the want of caution on the part of their servants; for in such a case the accident may be attributed to the fault of both parties, which would destroy plaintiff's right to recover." And then the court quotes, with approval, the above decision of the Pennsylvania court. Damont v. New Orleans & C. R. Co., 9 La. An. 441.

In a very recent case we referred to this principle as an evident one, saying: "Now, supposing that any passenger on a regular train should labor under a similar mistake in believing, for instance, that the train was passing by the station to which he was destined, and, fearing that he might be carried beyond the same, should jump out as the train was pulling out of the

station, and be injured by falling, could the company be held liable for injuries thus received? Evidently not." Reary v. Louisville, N. O. & T. R. Co., 40 La. An. 32; 34 Am. & Eng. R. Cas. 277.

In the multitude of adjudications and judicial expressions on this subject, by numerous courts, there have naturally arisen varieties and conflicts of opinions, and decisions, hostile, or apparently hostile, to each other, are quoted on either side; but the weight of authority undoubtedly sustains the views above expressed, and, at all events--what more nearly concers us they have been adopted in the jurisprudence of Louisiana.

Invitation to

The question is, then, whether the plaintiff, in jumping off the moving train, acted upon the express or implied invitation of the company. The evidence conclusively negatives any express invitation on the part of any leave train. employe of the company. It is equally clear that the officers in charge of the train never intended or expected that plaintiff should get off, and certainly did not slack up for the purpose of letting him get off. They acted precisely as they would have done had there been no passengers to take on or put off; for the engineer had no signal to that effect, therefore did not know that there was a passenger to put off, and only slackened the speed, as was his duty on all occasions, simply to allow the exchange of mails. Is it possible to construe this as implying an invitation? If so, such an invitation is given to every one who wants to get off the train whenever it passes such a station.

The testimony is conflicting as to the rate of speed at which the train passed the station. Nothing can be more uncertain than such estimates, especially when made by unskilled observers. The natural and probable conclusion from the circumstances is that the train only made the usual slacking of speed for exchanging the mails. There was no reason why the engineer should have acted otherwise. Plaintiff thinks he would have landed safely but for the acceleration of speed which took place as he was in the act of jumping. But this acceleration only took place after the train had passed the platform, and after the mails had been exchanged which was the usual and natural course. If plaintiff chose to infer an invitation to jump off from these customary acts of the company, it was a rash conclusion. One of his own witnesses testifies that he never, at any other time, saw a person jump from a train moving as fast as that one was, although he says it was moving slowly. That plaintiff's action was imprudent is shown by the result, and, as we think, by all the circumstances. His own evidence shows that he hesitated about at

tempting the jump, and was only determined by the question of a third person, and the thought that otherwise he would be carried beyond his station. His act was purely voluntary, uninfluenced by any invitation expressed or intended by the employes of the company, and excused by no impending danger or necessity of any kind, except his mere unwillingness to be carried beyond his station. It was imprudent and dangerous, and his action for the resulting injury is clearly barred by his own contributory fault. It is therefore ordered and decreed that the verdict and judgment appealed from be annulled and set aside, and that there be judgment in favor of defendant rejecting the demand, at plaintiff's cost, in both

courts.

WATKINS, J., dissents, and files separate opinions.

WATKINS, J., (dissenting.)-Plaintiff sued the railroad company for $10,000 damages for injuries he received in alighting from one of its trains while in motion, on which he was a passenger; it having passed the station to which he was ticketed without making a full stop, only slowing up to permit an exchange of mails. There was a verdict of a jury in his favor, which this court has set aside, and the substance of the majority opinion is that the act of the plaintiff was voluntary, and without invitation, on the part of the officers and agents of the railroad company; and while the company was, primarily, guilty of negligence in failing to carry out its contract of safe carriage, the plaintiff was guilty of contributive negligence.

The opinion puts the proposition thus: "The question is, then, whether the plaintiff, in jumping off the moving train, acted upon the express or implied invitation of the company;" and, answering that question, the opinion says: "The evidence conclusively negatives any express invitation on the part of any employe of the company. It is equally clear that the officers in charge of the train never intended or expected that he should get off." These dicta are the sole foundation of the opinion, and the legal proposition announced rests exclusively upon Damont v. New Orleans & C. R. Co., 9 La. An. 441; Pennsylvania R. Co. v. Aspell, 23 Pa. St. 147; and Reary v. Louisville, N. O. & T. R. Co., 40 La. An. 32, 34 Am. & Eng. R. Cas. 277

Let us see what is their purport, and what are the principles they announce, and whether they are a proper foundation Cases criti- for the opinion. In the Damont case none of the facts are stated. The only question discussed was the correctness of the charge of the judge a quo to the jury, and the case was remanded for a new trial. The only cases

cised.

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