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 attempting 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 1130 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. O. & 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. 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

Evidence

the track, and the speed of the train was slackened until they were frightened off. Afterwards the speed was increased a little, the whistle blown, and it was examined. again reduced, and slowly moved by the depotplatform, while the mail was being exchanged. When the train passed the depot he thought it was running slowly enough for a man to get off without danger. The only thing that prevented him getting off safely was that the train gave a jerk forward as he got off. The train was moving all the time, but very slowly. The place where he attempted to alight was a better place to get off than that where persons usually get off. The ground was smoother. The train was running at less than one-half its usual speed. When he was passing the place where the ties, etc., were lying, he thought it was not a safe place to get off. As he hurriedly made up his mind, the train passed an open place, and he got off there, because he thought it was better ground, and he could get off there without getting hurt. Using his own language, he says: "Just at the moment that I got off, the train made a jerk. I was in the act of leaving the steps, when the jerk came. I had let go the railing, and had started to step in the direction of the way the train was going, and one foot had left the steps, and the other [was] still on the steps, and [in the act of] leaving, when the jerk came." This occurrence happened at 10 o'clock A. M.

Another witness for plaintiff states that he was present, and saw the train approach the station, Using his own words, he says: "I think the train checked up a little, west of the platform, but near it. I do not think the train stopped entirely at the station this trip. I think the train came nearer stopping that day than it usually does to put off the mail * * About the time the locomotive got opposite the platform the train was moving very slow.

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Another of plaintiff's witnesses states, using his own language: "I was at Doyline station the day that Mr. Walker got his leg broke. I was in about fifteen steps of him when it happened. I saw him when he went to step off the train, and it appeared to me that, as he did so, the train got faster, and jerked his feet, from under him. Just before and at the time he attempted to get off, the train was going slow, and just as he went to step it appeared to me that it jerked his feet from under him. I do not know that it was going any slower than when they checked up for the mail. I have never seen anyone get off there when the train was running as fast as it was then, except Mr. Walker. I have frequently got on the train * when it was going as fast as that." On the part of the defendant there is not a syllable of pos

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itive testimony in opposition to these emphatic statements. The conductor was sworn, and simply stated "that the average rate of running is about 24 miles an hour on the road from Monroe to Shreveport. This was true in October, 1886. The average rate of speed, when passing flag stations, when the train does not stop, is between eight and twelve miles an hour, for the exchange of mails, as above stated." This witness does not profess to have any knowledge of the occurrence, because he says: "I learned the day afterwards that Mr. Walker jumped off the train, and had broken his leg." He subsequently volunteered the statement that "I judge that the train was running at about ten miles an hour on that day, when it passed Doyline, because it usually passes at that speed when only delivering the mail."

The engineer testified that he was on this road, running a passenger engine and train, in October, 1886, but that he had "no recollection of the accident that resulted in the injury of Mr. Walker." Said he did not "recollect who was engineer on the passenger train going east, on the 16th of October, 1886."

The defendant's third witness was the porter, who states, using his own words: "I recollect the time that Mr. Walker was said to have been hurt, at or near Doyline station." He says further: "I remember that on that day no signal was given to stop at Doyline, and I did not leave my seat."

Consequently it is established by the concurring statements of defendant's three witnesses, all of them trainmen, that they knew nothing of the occurrence, and could testify to nothing adverse to the testimony of plaintiff's witnesses. Of course the mere theoretical conjecture of the engineer, as to the speed of the train, amounts to nothing at all.

The recital of the foregoing facts is sufficient to take this case out of the principle announced in Pennsylvania R. Co. v. Aspell. They plainly show the defendant in fault, and without excuse. Now, I will consider whether they show the plaintiff guilty of contributory negligence to such a degree as to preclude his right to recover. A review of authorities will first be necessary.

Review of authorities.

It was decided by the supreme court of Tennessee, in 1887, that the act of a passenger in alighting from a train while in slow motion, who sustained injuries in consequence, has been, in the courts of several of the states, treated as negligence per se, and no damages can be recovered; but, say the court, "this is contrary to the current of judicial opinion, in this country at least. The true rule deducible therefrom is stated in 2 Wood, Ry. Law, 1130, to be that in all cases the question is one of fact, whether

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in view of the particular circumstances, the passenger was guilty of negligence in attempting to leave the train while it was in motion. In this, as in all other matters where the safety of passengers is concerned, the company owes a duty to the passenger to act with proper care and caution; and if the motion of the train is not entirely stopped, and the passenger is expressly or impliedly invited to leave the train while moving at a slow rate of speed, he has a right to presume that it is safe for him to do so. If the train is moving slowly, and there is no obvious danger in getting off, it cannot be said to be negligence per se to make the attempt; especially if the passenger is directed to do so; and it would be wrong to instruct the jury that such an attempt per se constituted contributory negligence.' Id. 1129. As a rule, it may be said that where a passenger, by the wrongful act of the company, is compelled to choose between leaving the cars while they are moving slowly, or submitting to the inconven ience of being carried by the station where he desires to stop, the company is liable for the consequences of the choice, provided it is not exercised negligently or unreasonably. Id. 1131, 1132" citing Thomp. Carr. 227-267. See, also, Plopper v. New York C. & H. R. R. Co., 13 Hun (N. Y.), 625; Keating v. New York C. & H. R. R. Co., 49 N. Y. 673; and Taber v. Delaware, L. & W. R. Co., 71 N. Y. 489.

"The earlier cases," says the Tennessee court, " establishes a rule that leaving a train [while] in motion was such negligence as defeated the right of recovery, unless done to avoid danger of remaining on board, and this is still stated as the 'general rule' in many authorities. 2 Wood, Ry. Law 1126; Thomp. Carr. 267. But the rule we have laid down is the modern one, and formulated from the many exceptions, and this modification has been before recognized by this court. East Tennessee, V. & G. R. Co. v. Conner, 15 Lea (Tenn.), 258." Louisville & N. R. Co. v. Stacker, 86 Tenn. 345.

It was decided by the supreme court of Georgia, in a recent case, that, "the railroad was bound to put him [a passenger] off; to stop its train for this purpose. This it failed to do, and it was not want of ordinary care in the passenger to use the only means to get off the course of the defendant permitted." Georgia R. & B. R. Co. v. McCurdy, 45 Ga. 289. See, also, Filer v. New York Cent. R. Co., 49 N. Y. 47; Loyd v. Hannibal & St. J. R. Co., 53 Mo. 509; Illinois Cent. R. Co. v. Able, 59 Ill. 131.

The proper limitation of that rule is stated in Wood's Railway Law thus: "But, generally, no recovery can be had if the cars are under such motion as to render it obviously dangerous for a person to attempt to leave them," p. 1136;

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citing Jeffersonville R. Co. v. Hendricks, 26 Ind. 228; Pennsylvania R. Co. v. Aspell, 23 Pa. St. 147; Damont v. New Orleans & C. R. Co., 9 La. An. 441; Gavett v. Manchester & L. R. Co., 16 Gray (Mass.), 501. The author then proceeds: "And, under such circumstances, it is not sufficient to charge the company that the conductor advised the passengers to make the attempt. It is the duty of the passenger to exercise his own judgment, and, if the danger was so great that a man of ordinary prudence would not have attempted it, he is guilty of such contributory negligence as bars a recovery;" citing Chicago & A. R. Co. v. Randolph, 53 Ill. 510; Chicago B. & Q. R. Co. v. Hazzard, 26 Ill. 373. When the danger is apparent, it must not be braved simply because the company is bound to stop the train, or because it is very important that the passenger should stop at that particular time." Wood, Ry. Law, 1136. But the rule is stated concisely to be: "But, in all cases, the question of liability must necessarily be determined by the facts and circumstances of each case, whether the train was in rapid motion, and whether the real danger was obvious." 2 Wood, Ry. Law, 1137. "But where a railway company fails to bring its train to a full stop at a station, it will be liable in damages for injuries sustained by a passenger in attempting to get off, if, under all the circumstances, it was prudent for him to make the attempt." Id. 1148, 1149; Price v. St. Louis, K. C. & N. R. Co., 72 Mo. 414, 3 Am. & Eng. R. Cas. 365; Central R. & B. R. Co. v. Letcher, 69 Ala. 106, 12 Am. & Eng. R. Cas. 115; Chicago, R. I. & P. R. Co. v. Houston, 95 U. S. 697; Memphis & C. R. Co. v. Copeland, 61 Ala. 376.

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The italics in preceding quotations are those of the writer. Abbotts states the rule thus: "Alighting from the car at an unsuitable place is not contributive negligence, if the train is not stopped at a suitable one, and if there is not such apparent danger as would deter a person of ordinary prudence.' 2 Abbotts', Dig. Corp. 598.

Beach announces the rule thus: "As in the case of boarding a railway train in motion, so it is held not contributory negligence per se for a passenger to jump off a train which is moving. Galveston, H. & S. A. R. Co. v. Smith, 59 Tex. 406; Loyd v. Hannibal & St. J. R. Co., 53 Mo. 509; Pennsylvania R. Co. v. Kilgore, 32 Pa. St. 292; Brooks v. Boston & M. R. Co., 135 Mass. 21, 16 Am. & Eng. R. Cas. 345. Whether or not a railway company shall be held liable in damages for injuries sustained by a passenger in attempting to leave one of its trains while in motion will depend upon whether, under all the circumstances, it was prudent for him to make the attempt." Beach, Contrib. Neg. p. 157, § 53; citing the following authorities, viz: Price v. St. Louis, K. C.