Jones v. Baltimore & Ohio Railroad , 4 App. D.C. 158 ( 1894 )

Mr. Chief Justice Alvey

delivered the opinion of the Court:

The special instruction asked by the plaintiff, as modified and granted by the court, taken in connection with the general charge of the court upon all the facts of the case, would seem to have placed the case before the jury in as favorable a manner as the plaintiff could reasonably ask, in view of all the proof of the case. And we find no valid objection to any of the special instructions granted by the court, at the instance of the defendant. Indeed, but for the rulings previously made in the case, it may be questionable whether the learned judge below should not have taken the case from the jury; for taking the testimony of the plaintiff as being in all respects true, and conceding that there had been negligence on the part of an employee of the defendant in misdirecting the plaintiff as to the proper train to be taken by him, it is difficult to perceive upon what rational principal of human action he could claim a verdict in his favor for the injuries received. It was the single act of the plaintiff, willed by himself, in attempting to leave the moving train, that produced the injury, and such injury would not have occurred, but for that act of the plaintiff, done in the exercise of his own free power of volition. It is not pretended that there was any impending or threatened danger to life or limb, or any imperious necessity that suddenly incited the plaintiff to assume the risk of jumping from the moving train, nor did the suggestion of the person supposed to be an officer of the company, “that if he did not want to go to Baltimore he had better get off,” justify the plaintiff in the perilous attempt of jumping or stepping from the moving train. There was nothing in the suggestion that amounted to a command to leave the train; and even if there had been, it would have been the duty of the plaintiff to have disregarded such command, until the train was brought to a position to enable him to escape without danger of personal injury. An adult person of ordinary intelligence, and capable of self-government, must be taken to know, and be held responsible for his knowledge, that in jumping or stepping from a train moving at the rate of between three and four miles an hour, there is serious risk of being thrown down and receiving injury, and that the attempt is perilous to anyone, except to those who, from practice, are expert in getting off and on moving trains. The railroad companies as carriers of passengers are held to a high degree of care, but there is a correlative duty on the part of the passenger, which requires him at least to take reasonable care and precaution for his own safety. He must not expose himself to an obvious peril, or assume a risk dangerous to life or limb, unless impelled to it to avoid what appears to be an impending danger of serious bodily harm. The stepping or jumping off the train by the plaintiff was, to say the least of it, prima facie evidence of carelessness on his part, and the jury must have so regarded it.

There are, doubtless, a great variety of views to be found in the reports of cases upon this subject, and there may be found cases that afford color to the contention of the plaintiff in this case. But there is a case of the highest authority, and one that is binding and conclusive upon this court, and which in principle would seem fully to embrace and control this case, and that is the case of Railroad Company v. Jones, 95 U. S. 439. That case arose in this District, and the decision of the Supreme Court made in that case has been repeatedly sanctioned in subsequent cases occurring in that high tribunal. In that case the plaintiff was one of a gang of hands that were employed in the construction and repair of the roadway. The hands were usually conveyed by the company to and from the place where they were at work, and a box car was assigned to that use. Although on several occasions forbidden to do so, and warned of the danger, the plaintiff, on returning from work the evening of the accident, rode on the pilot or bumper of the engine, when the train in passing through a tunnel, collided with cars standing on the track, and he was injured. There was ample room for him in the box car, and no one in that car was hurt. The plaintiff had been told by the conductor of the car, when about leaving the work that evening, to jump on anywhere; that they were behind time, and must hurry; and hence he got on the pilot of the engine. On this state of facts, the defendant requested that the jury be instructed that if they found that the plaintiff knew the box car was the proper place for him, and if he knew his position on the pilot of the engine was a dangerous one, then they should render a verdict for the';defendant, whether they found that its agents allowed the plaintiff to ride on the pilot or not. This request was refused by the court below, but that ruling was reversed by the Supreme Court, and it was held, that, as the plaintiff would not have been injured had he used ordinary care and caution, he was not entitled to recover against the defendant; and that the knowledge, assent, or direction of the agents of the company as to what the plaintiff did at the time in question was immaterial; that the company,although bound to the exercise of a high degree of care, did not insure the safety of the plaintiff against his own negligent or careless conduct.

In that case, the court, in defining negligence, say- “ Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done. The essence of the fault may lie in omission or commission. The duty is dictated and measured by the exigencies of the occasion.” And then the court say: “ One who by his negligence has brought an injury upon himself cannot recover damages for it. Such is the rule of the civil and of the common law. A plaintiff in such case is entitled to no relief. But where the defendant has been guilty of negligence also, in the same connection, the result depends upon the facts. The question in such cases is: 1. Whether the damage was occasioned entirely by the negligence or improper conduct of the defendant; or, 2, whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary care and caution, that but for such negligence or want of care and caution on his part the misfortune would not have happened. In the former case the plaintiff is entitled to recover. In the latter, he is not.” The court citing many cases in support of these propositions.

And in another part of the opinion the court say: “ The knowledge, assent, or direction of the company’s agents as to what the plaintiff did, is immaterial. If told to get on anywhere, that the train was late, and that he must hurry, this was no justification for taking such a risk. As well might he have obeyed a suggestion to ride on the cow catcher, or to put himself on the track before the advancing wheels of the locomotive. The company, though bound to a high degree of care, did not insure his safety. He was not an infant nor non compos. The liability of the company was conditioned upon the exercise of reasonable and proper care and caution on his part. Without the latter the former could not arise.” And in conclusion, the court say, that if an instruction had been asked requiring the jury to return a verdict for the defendant, it would have been error to refuse such instruction.

In the case in the Supreme Court from which we have so freely extracted, there are several cases referred to with approval that have a strong and direct bearing upon the case before us, adverse to the contention of the plaintiff in this case. Among others are the cases of Hickey v. Boston & Lowell RR. Co., 14 Allen 429 ; Gavett v. M. & L. RR. Co., 16 Gray, 501. See, also, upon the question of contributory negligence, the recent case of St. Louis, &c., RR. Co. v. Schumacher, 152 U. S. 77, 81.

The doctrine of many of the courts of the country is to the effect, that it is not necessarily, as matter of law, negligence in a passenger to attempt to leave a moving train, but it is a question for the jury, depending largely upon the circumstances of danger attending the act, and the special justification for the attempt. But many courts of high authority hold to the doctrine that to jump from a rapidly moving train will, ordinarily, be such negligence as to prevent a recovery for the resulting injury, unless the party so acting did so to escape from an apparent imminent peril, in which case the question will be for the jury. Cody v. RR. Co., 3 51 Mass. 462 ; England v. RR. Co., 153 Mass. 490 ; Phillips v. RR. Co., 49 N. Y. 177 ; Railroad v. Rector, 104 Ill. 296 ; Railroad v. Bangs, 47 Mich. 470 ; Railroad v. Leslie, 57 Texas, 83 ; McCorkle v. RR. Co., 61 Iowa, 555 ; Nelson v. RR. Co., 68 Mo. 595 ; Railroad v. Letcher, 69 Ala. 106. In this case the question of the negligence of the plaintiff in jumping from the moving train was treated as one of fact, and was fairly submitted to the jury for their determination. The first prayer of the plaintiff, as modified by the court, placed the case fully and fairly before the jury, upon the only possible ground upon which he could claim the right to recover.

There were several exceptions noted in the course of the trial below, presenting questions as to the admissibility of evidence; but we do not perceive that there was any error committed in the rulings excepted to. And as we are of opinion that the appellant obtained, in the instructions given to the jury, the full benefit of all the law to which he could in reason claim to be entitled, we must affirm the judgment.

Judgment affirmed.