New York, Philadelphia & Norfolk Railroad v. Coulbourn
The New York, Philadelphia and Norfolk Railroad Company v. Benjamin F. Coulbourn, by his Mother and next friend, Arrianna Coulbourn
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Opinion of the Court
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Alvey, J.,
delivered the opinion of the Court.
This was an action by the appellee against the appellant to recover for an injury sustained by the former, caused, as it is alleged, by the negligence of the latter. The accident occurred on the 11th of March, 1887, at Marion Station, on a branch road of the defendant. The plaintiff had been in the employ of the defendant, hut had left the service before the accident occurred. The defendant was indebted to the plaintiff on account of service rendered, and when the defendant’s pay car came to the station to pay off employés, the plaintiff, in company with the station agent, entered the car to receive the amount due him; and immediately after the amount was paid him the car started, and while moving the plaintiff jumped off and *367 broke his leg. The testimony varies as to the length •of time the car stopped at the station; some of the witnesses say about two minutes, and others from two to four minutes. The plaintiff jumped from the car step, which is said by some of the witnesses to be about two and a half or three feet from the ground. When the plaintiff jumped off, the car had passed the end of a high platform, and was moving, according to the testimony of some of the witnesses, at the rate of about four and a half to five miles to the hour.
There was no question raised as to the legal sufficiency of the evidence to be submitted to the jury. The two questions submitted to the jury upon the evidence, by the instructions given, were, 1st, whether there was sufficient time allowed, or warning given of the starting of the car, to enable the plaintiff, by the use of reasonable care,' to get from the car in safety; and, 2d, whether he did exercise reasonable care in his attempt to get off the car, under the circumstances of the case ?
The plaintiff entered the car for a lawful purpose, and was therefore rightfully in the car for such time as was reasonably sufficient to enable him to transact the business for which he entered it. The defendant, by its agents, and servants, was bound to afford reasonable time for the transaction of the business, before moving thp train, and was also bound to give proper warning of the purpose to'put the train in motion, to enable the plaintiff, by the xrse of reasonable care and diligence, to leave the car without risk of injury to himself in the act of getting off. If the defendant was negligent in the observance of these reasonable and necessary precautions, and such negligence caused the injury to the plaintiff, then, unless it be shown that the plaintiff, by his own want of care, directly contributed to the production of the injury, the defendant became liable. *368 Doss vs. Mo., Kans. & Texas R. Co., 59 Mo., 27 . The question of the negligence of the defendant, and also that of the contributory negligence of the plaintiff, appear to have been very distinctly and fairly put. to the jury in the first and third of the prayers of the plaintiff, and the third prayer of the defendant, granted by the Court, and by the substituted instruction of the Court, in lieu of the first and second prayers offered by the defendant. Indeed, by these instructions, the whole law of the case was fully and fairly presented for the guidance of the jury; and we discover no error in the rulings thus made for which the judgment below should be reversed.
The second prayer of the plaintiff related to the measure of damages, and was granted by the Court, and we do not understand that there is any specific error assigned in respect to that prayer, except that it is said to be too general and indefinite. But we fail to perceive that it is liable to such an objection.
The Court rejected the defendant’s fourth prayer, and in so doing we think it committed no error. By that prayer the Court was asked to instruct the jury, that if they should find that the car was moving at least at the rate of five miles an hour, at the time the plaintiff jumped therefrom, then such act of the plaintiff was negligence on his part, and their verdict should 'be for the defendant. This prayer excluded from consideration all the facts and circumstances, of the case, under which the plaintiff acted, except the single fact that he jumped from the car when it was moving at the rate of five miles per hour ; and if the jury should find that fact, then, the Court was asked to say as matter of law, there was such negligence on the part of the plaintiff as would preclude his right to recover, without regard to the other facts of the case. But, in our opinion, all the facts and circumstances of the case *369 were properly left to the consideration of the jury; and it was for them to determine, as matter of fact, whether the plaintiff, in jumping from the car, acted as a reasonably cautious man would do, under like circumstances. This is the principle announced by this Court, in the case of the Cumberland Valley R. Co. vs. Maugans, 61 Md., 53 , and the decision of that case is well supported by authority. It is doubtless a well settled general principle, that if a passenger, or other person lawfully on a train, without any direction from the conductor, or other person in authority over the train, voluntarily incurs danger by jumping from the train while in motion, the railroad company is not responsible for injury resulting therefrom. But if the motion of the train is so slow that the danger of jumping off is not reasonably apparent, and the passenger, or other person, acts under the direction of the conductor or other person in authority, then the defence of contributory negligence is unavailing; and it is for the jury to determine whether the danger of leaving or boarding a train when in motion is so apparent as to make it the duty of the passenger or other person to desist from the attempt. Wharf. Negl., sec. 380; Johnson vs. R. R. Co., 70 Penn. St., 357. The question, as one of fact, dependent upon all the circumstances of the case, was fairly submitted to the jury, by the granting of the defendant’s third prayer, and the substituted instruction given by the Court.
(Decided 22nd November, 1888.)
Binding no error we affirm the judgment.
Judgment affirmed.
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