President of the Delaware & Hudson Canal Co. v. Webster , 3 Sadler 280 ( 1886 )

Opinion by

Mr. Justice Trunkey:

If the deposition referred to in the first assignment of error was inadmissible for the reasons stated, it is not shown by anything printed in the paper book of the defendant. From what is printed by the other party it appears there is no fatal defect. And from inspection of the return of the commissioner we find no valid objection.

The remaining question raised by the assignments is: Was it the duty of the court to instruct the j ury to render a verdict for the defendant because of the plaintiff’s concurrent negligence % That it was fairly submitted to the jury, if it was proper to submit at all, to find whether the plaintiff vas negligent, with instruction that, if his negligence contributed to the accident, he cannot recover, is conceded.

Had the jury found that the whole of the conductor’s testimony was true, the plaintiff had no case, and so the court charged. The statements as to what the conductor said just before the plaintiff stepped off the car are in sharp conflict. One testifies that the conductor told the plaintiff three times to get off; the conductor, that he said to the plaintiff: “Wait till we stop.” It is uncontroverted that the plaintiff was to get off at Keen’s mill; that the train was not running as fast as a person would ordinarily walk; that it was under control and could have been stopped within the length of a car.

The principles applicable to the question presented are well settled. It is not negligence per se for a passenger to get off a car that is moving slowly, in response to invitation by a person in charge of the train. But if the train is moving so rapidly as to render it clearly dangerous to attempt to get off, the passenger who does is negligent. When there is doubt whether the speed of the train was so rapid as to render it clearly dangerous to get off, the fact is for the jury.

“Although, if a passenger, without any directions from the conductor, voluntarily incurs danger by jumping off the train while in motion, the carrier is not responsible for injury resulting therefrom; yet if tire motion of the train is so slow that the danger of jumping off is not reasonably apparent, and the passenger acts under the instructions of the conductor, then the defense of contributory negligence is unavailing, and it is for the jury to say whether the danger of leaving or boarding a train when in motion is so apparent as to make it the duty of the passenger to desist from the attempt.” Wharton, Neg. § 380.

This doctrine is sustained by numerous decisions in other states, and is not in conflict with the authorities in this state.

When a person, about to jump from a car running 10 miles an hour, in midnight darkness, is warned by the conductor of the danger, and told that the train shall be stopped, takes the risk, jumps, and is hurt, his concurrent negligence bars recovery. In that case the court rules that an action cannot be maintained. Pennsylvania R. Co. v. Aspell, 23 Pa. 147, 62 Am. Dec. 323.

In McClintock v. Pennsylvania R. Co. 42 Phila. Leg. Int. 82, the plaintiff got off a moving train without direction or notice of any person in charge of the train. There was some conflict of testimony respecting the cii’cumstances, and the question was submitted to the jury.

When a woman, accompanied by three children, on arriving at her place of destination proceeded to alight, two of the children had left the car, and, while she was still on the car, the train started, when she sprang upon the platform and was injured. The question of concurrent negligence is to be determined by the particular circumstances, and is for the jury. Her case was not like Aspell’s. The abstract truth, “that it is wrong for a party to attempt to leave the cars while they are in motion,” did not apply to the circumstances in which she was placed. Pennsylvania R. Co. v. Kilgore, 32 Pa. 292, 72 Am. Dec. 787.

In Johnson v. West Chester & P. It. Co. 7 OPa. 357, the question was whether the plaintiff, who had attempted to board a train while in motion, was guilty of contributory negligence. The court charged that, if the train was distinctly running upon the track when the plaintiff attempted to enter, he was guilty of negligence and could not recover. That was held to be error; and this court ruled that it was for the jury to say, under all the circumstances in evidence, whether the danger of boarding the train when in motion was so apparent that the plaintiff was guilty of contributory negligence in making the attempt.

There was no error in submitting the question to the jury.

Judgment affirmed.