Wood v. Lake Shore & Michigan Southern Railway Co.

Mabston, J.

The defendant requested the court to charge the jury that the plaintiff was not entitled to recover and their verdict must therefore be for the defendant. The court refused to so charge and this is alleged as error.

The bill of exceptions does not purport to give all the evidence or even the substance thereof; the presumption therefore would be that the evidence justified the rulings. There is however sufficient evidence set forth in the record to show that the defendant was not entitled to have the request made given.

The plaintiff was a passenger upon a train of the defendant, and as it approached a small station the name thereof was called in the usual manner. The plaintiff thereupon, as the train slacked up, went on to the forward platform of the car in which he had been riding, and inquired of the conductor if the train would stop at that place for water •and was informed that it would; the plaintiff then stepped down on to the lower step, while the cars were still in motion, and when they came to a full stop attempted to step down feherefrom on to the platform, and while in the act of so doing the cars “ started up with a jerk and threw me down.” M This was at the usual and customary place for passengers to get off.” The train then drew up a few feet to the water-tank and again stopped. No notice or signal was given that the cars were about to move up to the tank.

It is claimed that it was negligence on the part of the plaintiff in going on to and standing upon the car platform and steps while the car was in motion. This may be true and might have prevented a recovery had the plaintiff been injured while standing there before the train stopped. Such however was not the fact, and his standing there neither caused nor contributed to the injury, other than by enabling *373 the plaintiff to step off the train immediately upon its coming to a stop. Upon the stopping of the train he had then a right to get off, whatever his position- up to that time may have been, and the danger of his position up to then cannot be charged against him, if he then, in the usual and customary manner and place, attempted to get off. It might be argued that it was his duty to remain seated in the car until the train actually should stop, and that had he done so this injury could not have happened. In another case the argument might be carried still farther and it be said that a pas. senger on a seat near the door of the car, if injured in attempting to get off, could not recover, because he might, if seated nearer the middle of the car, have avoided the danger. In my opinion all such matters must be considered as too remotely connected with the injury to affect the plaintiff’s right of recovery. If while the plaintiff is in an improper position, he receives an injury, this may prevent a recovery, but that fact will not, if he afterwards and while exercising his rights at a proper time and place, receives an injury. In the former case the plaintiff’s own act may have directly contributed to the injury, whereas the exercise of a lawful right, whatever the previous position may have been, cannot be said to have caused or contributed to the injury. Had the plaintiff been in an improper position when the cars stopped and because thereof attempted or been obliged to resort to unusual methods to alight and been injured while so doing, the case would be different, as the second wrong act would contribute directly to the injury; but such is not this case.

The judgment should be affirmed with costs.

The other Justices concurred.