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It certainly was proper for appellee to state the position of the

water pipe when it struck him; and it was not error Position of water pipe.

to permit him to state that it could not have struck

him, had it been placed in its usual position when not used to conduct water from the water tank to a tender.

The court correctly instructed the jury as to the degree of care necessary to be used by appellant to relieve it from liability for an injury to appellee while a passenger, and also as to the effect which the failure of appellee to use due care would have upon his right to recover, and did not err in refusing to give the several charges asked by appellant, and referred to in assignments of error. All but one of these charges were either erroneous or misleading; and the one presented nothing not substantially given in the main charge, in language clear and appropriate. The charges of the court, given at request of appellee, did not assume that the failure of the conductor to give some signal before starting the train was neg. ligence, but left the jury free to determine whether, under all the facts in evidence, the injury resulted through the want of due care on the part of the servants of appellant. Nor did the charges tend to induce the jury to believe that the failure to give such notice was the proximate cause of the injury. In the main charge the court had instructed the jury that appellant would be liable only in the event of such negligence on its part as was the proximate cause of the injury; and, further, that, even if such negligence existed, that would not entitle appellant to recover, if he was guilty of contributory negligence. The charge also informed the jury what was meant by “proximate cause," and defined the term “contributory negligence." The starting of the train without notice had but a remote bearing on any question involved in the case, but it was a fact which might be looked to in determining whether appellee was guilty of contributory negligence in being on the car top, and especially so when it was contended that appellant owed him no duty when outside of the caboose. The court, with propriety, might have refused to give the charges complained of, after giving the main charge; but the giving of them furnishes no ground for reversal, as they were neither erroneous nor misleading.

It is contended that the verdict of the jury is contrary to the evidence, in that the evidence clearly showed that ap

pellee failed to use due care in attempting to enter Due care in the caboose from its top. The evidence shows that

appellee was attempting to enter the caboose at the

place fixed for employes to enter from the top; and there is no evidence tending to show that it was obviously dangerous so to enter, nor that appellee was negligent in the

entering ca. boose.

manner of his attempt to enter. The injury did not occur by reason of any danger necessarily attending an attempt to enter the car from above; nor, so far as the evidence shows, from the negligent manner in which the entry was attempted, but from the water pipe, which overhung the top of the cars; which it would not have done had it been in its proper position. Whether appellee ought to have seen it and protected himself from injury from it, was a question for the jury.

The verdict seems large; but, looking to the nature of the injuries shown to have been received by appellee, we cannot say that the damages are excessive. There is no error in the judgment, and it will be affirmed.

LOUISVILLE & NASHVILLE R. Co.

v.

BISCH. (Indiana Supreme Court, November 1, 1889.) Passenger-Contributory Negligence--Travelling on Platform of Freight Train.-A passenger who remains on the platform of a car at the rear end of a long train of freight cars after warning to leave it, voluntarily occupies a place of danger and assumes the risk of injury from the jerking of the train in starting.

APPEAL from Circuit Court, Warrick County.

Action by Victor Bisch against the Louisville & Nashville R. Co. to recover damages for personal injuries received whilst a passenger upon one of defendant's freight trains. Defendant appeals from a judgment for the plaintiff.

James M. Shackelford and S. B. Vance for appellant.
Denby & Kumler and Gilchrist & De Bruler for appellee.

ELLIOTT, C. J.—The appellee entered a car at the rear end of a freight train standing on the appellant's track. He rightfully entered the car as a passenger. After remaining in the car a short time he walked out upon the rear platform, and while standing there the train was started with a sudden jerk, and he was thrown to the ground and injured. There is evidence tending to prove that he was requested by the appellant's employes to leave the platform, and enter the car, and that he disregarded this request or order, and remained on the platform. The evidence also shows that there were from 15 to 20 freight cars attached to

Facts.

the locomotive, and there was much evidence to the effect that because of the slack between the cars a freight train cannot be started without a jerk. The appellee in his testimony says: " I knew freight trains did not go so smoothly as a passenger train. If there had been no slack, there would have been no jerk.” The court instructed the jury that unless the plaintiff proved that he was not guilty of contributory negligence there could be no recovery, but there were no instruc. tions defining “contributory negligence;" for all the instructions upon this subject were expressed in general terms.

One of the instructions given by the court reads thus : “Even if the jury find from the evidence that the plaintiff had

been warned against standing on the platform, and Assumption of had been directed to go inside, and had disobeyed risk by trav: the instruction, still if the jury also believe from elling on platform.

the evidence that the conductor of the train, at the

moment of giving the signal to start, actually saw the plaintiff on the rear platform of the caboose, in the act of entering or attempting to enter the caboose, and knew that he was in a dangerous position, and gave the signal to start while the plaintiff was in that position, and without giving him a reasonable time to enter, and that by a sudden jerk in starting the cars the plaintiff was thrown to the ground and injured, then the jury should find for the plaintiff.” This instruction cannot be rescued from condemnation. Leaving out of consideration minor matters of objection, and placing our decision upon broad grounds, we adjudge that the instruction is so radically wrong as to compel a reversal of the judgment. The plaintiff by refusing obedience to the directions given him, and by voluntarily remaining in a place of danger after warning, assumed the risk of injury. The case, as it appears in the hypothesis on which the instruction proceeds, is a stronger one than the ordinary case of contributory negligence; for the plaintiff did more than carelessly seek and remain in a place of danger, for he remained there in disobe. dience of directions given him, and despite the warnings which he received. He in fact assented to the injury. The case goes beyond the operation of the rule on the subject of contributory negligence, and comes within the scope of the maxim, Tolenti non fit injuria. Around the central proposition that the plaintiff voluntarily assumed the risk by remaining in a place of danger, in disobedience of directions and warnings, may be grouped various subsidiary doctrines, which fortify and strengthen it. A passenger is justified, as a general rule, in obeying the direction of the employes of the

carrier, and if he receives injury in obeying them the carrier is liable, even if it appears that if he had not obeyed he would have escaped

Refusal to obey direc tions.

injury. Cincinnati, H. & I. R. Co. v. Carper, 112 Ind. 26–29, 31 Am. & Eng. R. Cas. 36; Louisville & N. R. Co. v. Kelly, 92 Ind. 371, 13 Am. & Eng. R. Cas. I ; Terre Haute & I. R. Co. v. Buck, 96 Ind. 346, 18 Am. & Eng. R. Cas. 234; Lake Erie & W.R. Co. v. Fix, 88 Ind. 381, 11 Am. & Eng. R. Cas. 109; Pennsylvania Co. v. Hoagland, 78 Ind. 203, 3 Am. & Eng. R. Cas. 436; Pool v. Chicago, M. & St. P. R. Co., 53 Wis. 657, 3 Am. & Eng. R. Cas. 332; Hanson v. Mansfield R. & Transp. Co., 38 La. Ann. 11; Filer v. New York R. Co., 59 N. Y. 351; St. Louis, I. M. & S. R. Co. v. Cantrell, 37 Ark. 519, 8 Am. & Eng. R. Cas. 198; Fowler v. Baltimore & O. R. Co., 18 W. Va. 579, 8 Am. & Eng. R. Cas. 480; Hickey v. Boston & L. R. Co., 14 Allen (Mass.), 429; Pennsylvania R. Co. v. Aspell, 23 Pa. St. 147; Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 291 ; Lake Shore & M. S. R. Co. v. Brown, 123 Ill. 162, 31 Am. & Eng. R. Cas. 61.

If the passenger may safely obey such directions, it must be for the reason that it is his duty to do so, and it follows that if he refuses to do so he is guilty of a breach of duty. One who is himself guilty of a breach of duty, and wrongfully remains in a place of danger, cannot recover if that wrong was the proximate cause of his injury, although another may have also been in fault. To authorize a recovery the case must be one “of unmixed negligence.” This case strikingly illustrates this rule, for had the plaintiff entered the car, as it was his duty to do, the injury wonld not have befallen him. Clearly, then, his own wrong was the proximate cause of his misfortune. Sullivan v. Philadelphia & R. R. Co., 30 Pa. St. 234. Not only did the plaintiff, upon the theory on which the instruction is constructed, disobey a direction given him, but he remained in a place of danger where he ought not to have remained, even if he had not been warned and directed to leave it. There are very many decisions which affirm that one who remains on the platform of a train about to move, or which is in motion, although it is a regular passenger train, is, in the absence of explanatory circumstances, guilty of such negligence as will bar a recovery. Secor v. Toledo, P. & W.R. Co., 1o Fed. Rep. 15, 6 Am. & Eng. R. Cas. 616; Blodgett v. Bartlett, 50 Ga. 353; Camden & X. R. Co. v. Hoosey, 99 Pa. St. 492, 6 Am. & Eng. R. Cas. 454; Hickey v. Boston & L. R. Co., 14 Allen (Mass.), 429; Willis v. Long Island R. Co. 34 N. Y. 670 ; Smotherman v. St. Louis, I. M. & S. R. Co. 29 Mo. App. 265. But we do not decide whether these decisions declare the law correctly or not. It is sufficient for our purpose and for this case to affirm that a passenger who remains on the platform of a car at the rear end of a long train of freight cars, after warning to leave it does voluntarily occupy a place of danger.

We confine our decision to the case of one riding on a freight train, since that is all the case presented by the record requires. There is, it is our duty to say, a difference between freight trains and regular passenger trains. Passengers assume the risks incident to the means of transportation they adopt, and one who takes passage on a freight train, although it has a caboose attached for the transportation of passengers, must take notice of the character of the train, and use such ordinary care to avoid injury as the nature of the mode of transportation renders prudent. Woolery v. Louisville, N. A. & E. R. Co., 107 Ind. 381, 27 Am. & Eng. R. Cas. 210; Wallace v. Western N. Car. R. Co., 98 N. Car. 494, 34 Am. & Eng. R. Cas. 553; Harris v. Hannibal & St. J. R. CO., 89 Mo. 233; 27 Am. & Eng. R. Cas. 216; Murch v. Concord R. Co., 29 N. H. 9; Galena & C. U. R. Co. v. Fay, 16 Ill. 558. One of the risks which ordinary prudence requires a passenger on the caboose of a freight train to guard against is that arising from the sudden jerk of the train on starting, resulting from the taking up of the slack between the cars. This is a matter of common knowledge of which an adult has no right to be ignorant, and with this knowledge he has no right to put himself in a position where it is probable that he will be thrown from the car when the train is put in motion. In this instance, the plaintiff, having remained in such a position, heedless of warning and in disobedience of instructions, has no cause of action. In assuming that upon the hypothetical case stated in the instruction he might recover, notwithstanding his own wrong, a fatal error was committed. Judgment reversed.

Contributory Negligence-Travelling on Platform.-See Alabama G. S. R. Co. v. Hawk (Ala.), 18 Am. & Eng. Ř. Cas. 194, note 201; Indiana B. & W.R. Co. v. Burdge (Ind.), 18 ld. 192; Wood v. Lake Shore & M. S. R. Co. (Mich.), 8 Id. 478; Camden & A. Á. Co. v. Hoosey (Pa.), 6 Id. 454, note 460 ; note 13 Id. 27.

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