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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 be. fore 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.

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 Jumping from justify the plaintiff in jumping off the moving train, --Pallare to 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

Authorities great lawyer who delivered it, (Judge BLACK,) but

examined. also because it has been expressly quoted and affirmed 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. 44I.

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

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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.

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

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 cir. cumstances 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 hésitated 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 princi. ples they announce, and whether they are a proper foundation

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

Cases criti. cised.

cited therein as authority were Lesseps v. Pontchartrain R. Co., 17 La. 362, and Fleytas v. Pontchartrain R. Co., 18 La. 339. Those two cases involved claims for damages sustained by the owners of slaves who had been killed, one in attempt. ing to cross a railroad track, and the other while lying on the track, either drunk or asleep. The mere citation of those cases as authority for the decision of that case shows how imperfectly understood were the questions involved, in 1854, when that opinion was rendered ; for, of course, there being between the owners of the slaves and the railroad companies no contractual relations whatever, the former were primarily guilty of gross negligence, and the latter were without fault. But the opinion quotes with approval the paragraph from Pennsylvania R. Co. v. Aspell, which was quoted in the Damont Case, but in that extract no part of the facts of that case is recited. They are brought forward in Wood's Railway Law, at pages 11 30 and 1132, and we quote them to show how very inapplicable to this case they are. They are as follows, viz. : “Whilst the train was in motion, the plaintiff leaped from the car, though warned by the conductor and brakeman not to do so, and informed him that the train would be stopped and backed to the station.

If he had heeded them he would have been safely let down, at the place he desired to stop at, in less than a minute and a half. "Instead of this, he took a leap which promised him nothing but death; for it was made in the darkness of midnight, against a wood pile close to the track, and from a car going probably at the full rate of ten miles an hour."

On this state of facts both the Aspell and Damont Cases depend. On such a state of facts, of course, the plaintiffs were held to have been guilty of gross negligence, and the railroad companies without' fault. But why should those decisions be cited in this case as sustaining the doctrine of contributory negligence? I confess I cannot understand, for I respectfully submit that this record presents no such case.

Nor is the case of Reary v. Louisville, N. 0. & T. R. Co. at all applicable, because it was one of a little girl who received injuries in jumping from a train of cars while in motion. But she was not a passenger. The train was in the depot-yard being uncoupled at the time, and the conductor had gone home.

home. The paragraph quoted from that case in the opinion was hypothetically stated, merely for the purpose of an illustration and has no weight, as a part of that decision. Without antagonizing the opinion on its statement of facts, I propose to make an independent one.

As a witness, the plaintiff says that, when within 200 yards of the station of his departure, there was a yoke of oxen on

41 A. & E. R. Cas.-12

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