Central Railroad & Banking Co. v. Letcher , 69 Ala. 106 ( 1881 )

BRIOKELL, O. J.

In M. & C. R. R. v. Copeland, 61 Ala. 376, the undisputed facts' were, that plaintiff’s intestate attempted to cross defendant’s railroad track, by passing under the coupling of two box cars, which were coupled together and constituted part of a freight train, then standing temporarily on the side track, placed there with locomotive and steam up, to .allow a passenger train to pass it. "While in the act of passing-under the coupling, the train was moved, and he was knocked down, run over and killed. There was conflict in the proof as to whether the required signals were, or were not given; but upon the assumption that the signals required by statute were not given, and upon a consideration alone of the undisputed facts, we held, that the attempt 'thus to pass between the cars of a train, which he must have known was liable to be moved, could not be classed as less than negligence, bordering on recklessness. “It certainly contributed,” we said, “proximately contributed to the very sad disaster which followed. If the usual ■signals had been sounded, probably the intestate could have extricated himself in time to save his life.. If he had not attempted to cross over between the cars, he .would have been in no peril, and suffered no injury. Both were in fault.” Our decision in that case was, that there could be®no recovery .against the railroad company, although there was on its part negligence in failing to give the signals required by statute, immediately before, and at the time of the moving or departure of ■the train, the. injury not having been inflicted wantonly or intentionally.

Applying the same principles to the facts of this case, as ¡shown by the evidence of the plaintiff, and deducing therefrom ■every inference advantageous to him, which may be fairly and properly deduced; excluding all evidence favorable to the defendants, the injury of which he complains is attributable directly and immediately, not to the negligence imputed to the defendants, but to his own thoughtless and reckless act. The risk he assumed, and assumed only to avoid a slight temporary inconvenience, in view of the circumstances, was more hazardous than that Copeland assumed. When he endeavored to pass-under the train, it was motionless, and there was no indication that it would be moved before he would have passed beyond it. The train here was moving from a regular depot, on its accustomed journey, the speed increasing every moment; all who were in charge of it were ignorant that the plaintiff was upon it; and without notice, or request to any of them to slow or stop the train, without an effort to arrest its progress, of his-own accord, his right hand filled with papers taken from his-pocket, he walks from one platform to another, and descends in a manner that was almost certain to cause him to fall. To permit him to recover of the defendants for the injuries sustained by the fall, would be simply compelling them to compensate him for his own wrongful and reckless act. Under these circumstances, the court should have instructed the jury,' on the request of the defendants, that the plaintiff had no right-of recovery. There was really no question to submit to the determination of the jury, without seeming to invite them, under the influence of sympathy for the sufferings of the plaintiff, or upon conjecture and speculation, to render a verdict it would have been the duty of the court to set aside. — M. & C. R. R. Co., supra; R. R. Co. v. Houston, 95 U. S. 697.

As was said by Black, C. J., in R. R. Co. v. Aspell, 23 Penn, St. 147: It has been a rule of law from time immemorial, and it is not likely to be changed in all'time to come, that there can be no recovery for an injury caused by the mutual default of both parties. When it can be shown that it would not have happened except for the culpable negligence of the party injured, concurring with that of the other party, no action can be maintained.” The negligence of the employees of the defendant's— the failure to sound the whistle or to ring the bell, as required by the statute, immediately before and at the time of leaving the depot, involved the defendants in liability for all injuries to person or property, resulting from the failure. Of itself, and in itself, it was negligence. — M. & C. R. R. Co. v. Copeland,. supra; 2 Thomp. Neg. 232, § 8. The statute does not relieve whoever may be in peril of injury from the neglect of the servants and employees of the railroad company to observe its requirements, from the duty and necessity of taking ordinary care to avoid the injury; nor does it modify or abrogate the principle, that a plaintiff shall not recover for unintentional injuries — for injuries not wanton — to which his own negligence directly and immediately contributes. — R. R. Co. v. Houston, supra.

.The only injury which could have resulted to the plaintiff, from the neglect to give the signals for the departure of the train, was the inconvenience of being carried from his home; the loss of time, and the labor or expense of returning. These were the immediate, direct consequences of the neglect. To .avoid them he was not justified in putting in jeopardy life or limb; and if he should, and other injury result, the compensation he can rightfully demand is not increased. What would have been his rights,'if there had been the presence or pressure of impending peril of personal injury, and to avoid it, he had leaped from the train; or, what would have been his rights, if under the advice, direction, or command of an agent or employee of the defendants, he had left the train as he did, are not questions now for consideration. In the absence of such peril, or of such advice, direction, or command, or of some other circumstance, lessening the carelessness of the act, or giving to it the color of necessity, leaping from a moving train by all the .authorities is esteemed negligence, debarring a recovery because of the prior negligence of the servants or agents of a railroad company. The question is fully considered and discussed in authorities to which we refer. — Lucas v. N. B. & T. R. R. Co., 6 Gray, 64; Morrison v. E. R. Co., 56 N. Y. 302; Burrows v. E. R. Co., 63 N. Y. 556; R. R. Co. v. Aspell, 23 Penn. St. 147; Damont v. N. O. & C. R. R. Co., 9 La. An. 441; J. R. R. Co. v. Hendricks, 26 Ind. 228; Dougherty v. C. B. & Q. R. R. Co., 86 Ill. 467; Lambeth v. N. C. R. R. Co., 66 N. C. 494; Doss v. M. K. & T. R. Co., 59 Mo. 27; Nelson v. A. & P. R. R. Co., 68 Mo. 593; L. S. & M. S. R. R. Co. v. Bangs, 47 Mich. 470.

The Circuit Court erred in several of its rulings, and espe•cially in refusing, on request, to charge the jury on the evidence •to find a verdict for the defendants.

Eeversed and remanded.