Brown v. Chicago, Milwaukee & St. Paul Railway Co. , 80 Wis. 162 ( 1891 )

WiNslow, J.

The nonsuit was clearly right, and must be affirmed. There are only two possible theories upon which the disappearance of the deceased from the train can be accounted for, i. e., (1) he fell from the train, or (2) he voluntarily jumped from the train. The theory that he fell from the train is simply a theory, founded upon no fact in the case, and in fact contradicted by every circumstance in proof which throws any light on the transaction. Should a jury find as a fact that he fell from the train, such finding would have to be set aside at once as contrary to all the evidence. On the other hand, the circumstances in evidence tend to directly substantiate the theory that he voluntarily jumped. The position of the bundles would indicate that he first threw them to a little distance, so that his hands and arms might be disengaged and ready for use. Had he fallen, or been thrown by a jar from the platform, he and bis bundles would probably have been found in close proximity.

The marks of his feet in the sand, parallel with the track, close together, pointing east, the heels deeply indented, clearly indicate that he jumped with the train, as one would naturally do; and the position of the body, parallel with the track, and pointed east, also tends strongly to corroborate this same theory. Our conclusion is that no finding of fact could be sustained .under this evidence, save the finding that he jumped from the train. This fact then being established, the legal consequences flowing from it are obvious. “As a general rule, it is negligence for an adult person to jump from a train of cars in motion.” Hemmingway v. C., M. & St. P. R. Co. 72 Vis. 42. True, there are exceptions to this rule, as where a passenger is suddenly put in a state of excitement or fright by the fault of the company, and voluntarily jumps from the train to avoid greater danger; and it is possible there may be other circumstances which might arise and would justify a court in submitting to a jury the question as to whether, in view of all the circumstances, the voluntary jumping from the train was or was not a want of ordinary care. But there are no such circumstances in this case. There was no accident to the train, no sudden danger, no occurrence which would naturally cause the least alarm or apprehension of injury on the part of an adult in full possession of his senses, as the deceased appears to have been. . The only rational explanation is that he found the train had passed his station, was increasing its speed, and that he preferred taking the risk and jumping from it rather than be carried any further past his home. Bespond-ent’s counsel conceded that there was sufficient evidence to take the question of respondent’s negligence, in not stopping the train at Blue Biv'er, to the jury, but this is not sufficient to entitle the plaintiff to recover. The deceased was manifestly guilty of contributory negligence, and that defeats the action, even if it were found that respondent was negligent in the management of its train.

By the Gourt.— The judgment of the circuit court is affirmed.