Kopacka v. New York, N. H. H.R. Co.

The controlling question in the case is whether the jury could reasonably have found that the plaintiff was in the exercise of due care in attempting to board the train under the circumstances stated in his testimony.

It was also claimed that the plaintiff had so far succeeded in boarding the train that he was already in a place of safety when the jerk occurred which threw him to the station platform, so that his previous conduct, even if imprudent, had nothing to do with the accident. This last claim is untenable. The plaintiff described in detail his position when the jerk occurred. At that time his left hand gripped the railing behind the step, his right hand was occupied with the travelling bag and clock, his left foot was on the lower step, and his right foot raised to reach the second step. Considering that his right hand was occupied and his hold on the railing was behind the weight of his body, his position was still unstable and precarious, and the jury could not reasonably have found that he had reached a position of safety.

It is claimed that the plaintiff, who was a strong active man, took no undue risk in attempting to board a slowly moving train; but his own testimony indicates that he recognized the existence of the risk and hesitated about making the attempt. He testified that after rushing up the stairs because he did not wish to lose the train, and after finding that the train was moving, and the car directly opposite was an express-car, he hesitated, as he said in his direct examination, for a minute whether he should get the train or not; and, on cross-examination, that he stopped a moment to make up his mind whether he had better try to board the train or not; and then, seeing the gate swung open, "made a dash for the car," jumping the two patches of ice on the way. All the conditions for attempting to catch the train were unfavorable. The plaintiff was encumbered by his overcoat and luggage, the station platform was slippery in spots, and the train, which was increasing its speed, must be boarded by running up from behind, at a point in front of the following express-car. These things were apparent, and the plaintiff's testimony shows that his final dash for the car was the outcome of indecision and sudden impulse. It resulted, not unnaturally, that the plaintiff found himself clinging insecurely to the steps of the car when the jolt occurred which dislodged him.

As to the effect of the trainman's act in throwing open the gate of the car, we are referred to some authorities holding that an invitation to leave or enter a moving train amounts to an assurance that the attempt may safely be made, and that the risk will not be increased while the passenger is acting on the invitation. This rule must evidently be limited to cases where the danger is slight, or its full extent not apparent at the time, so that the passenger is reasonably entitled to rely on the invitation as an assurance of safety. If, for the purposes of this decision, the act and speech of the trainman be treated as an invitation to the plaintiff to run for the train, the danger of accepting the invitation still remained obvious to an experienced traveller who made use of his senses. It was at best an invitation to assume a self-evident risk; addressed to a person who was bound to understand the danger of accepting it.

This view of the case makes it unnecessary to determine whether the defendant was negligent either in the operation of the train, or in its make-up. The nonsuit was rightly granted, for the reason that the jury could not reasonably have found that the plaintiff was in the exercise of due care in attempting to board the train.

There is no error.

In this opinion the other judges concurred.