§ 2932. Leaping from Railway Train under Advice or Orders of Conductor or Trainmen.1-So also, although it may in fact be hazardous for the passenger to attempt to alight under given circumstances, yet if he does so at the instance or direction of the conductor or other employé of the company in the management of the train, on whose opinion or judgment in the matter he has a right to rely, and where the risk or danger is not apparent, he will not be chargeable with contributory negligence.62 Thus, it has been held that it is not contributory negligence to jump from a freight train running at a dangerous rate of speed, where one holding a passenger ticket which he believes to be good on such train, is violently abused and threatened with ejection by the conductor unless he jumps off, and there is sufficient force at hand to execute the threat unless the conductor's command is obeyed.63 So, a railway company has been held liable to a female passenger for injuries sustained by her, where it negligently failed to stop its train at her destination, and one of its trainmen, whom she supposed to be the conductor, told her that she would have to jump off, and she did so after seeing two male passengers alight in safety and while the train was moving at an apparently slow rate of speed. It has been seemingly well reasoned that if the conductor of a railway train improperly orders a passenger to leave the train while it is in motion, and the passenger immediately acts. upon the order and thereby is hurt, the company will be liable to him 64 61 This section is cited in § 3027. 62 St. Louis &c. R. Co. v. Cantrell, 37 Ark. 519, 526 [citing Filer v. New York &c. R. Co., 49 N. Y. 47; Lambeth v. North Carolina R. Co., 66 N. C. 494, 499]; Whitlock V. Comer, 57 Fed. Rep. 565; Foreman v. Missouri &c. R. Co., 4 Tex. Civ. App. 54; s. c. 23 S. W. Rep. 422; Southwestern R. Co. v. Singleton, 67 Ga. 306. Accordingly, where the train at the time the passenger attempted to jump upon the platform, was moving very slowly, so that, after he fell, it moved only fifteen or twenty feet before it stopped, and the direct or immediate cause of the accident was that it had passed the platform too far when he leaped from the car, for him to reach it, and there was no evidence tending to show that he knew there was any risk or hazard in the attempt to get off, or that he was guilty of any want of care which contributed to the accident, but, on the contrary, it appeared that he was told by the conductor and brakeman "to hurry and get off," the latter telling him also that they were in a hurry, so that he was obliged by their impatience to make the attempt to alight as he did, it was held that he was not precluded from recovering damages on the ground of contributory negligence: St. Louis &c. R. Co. v. Cantrell, 37 Ark. 519. So, where a passenger was induced to leave the train upon receiving the assurances of the conductor that it would not start for five minutes, but it started before the expiration of that time, and the passenger was injured while endeavoring to board the train after it had started.-it was held that the question, both of the negligence of the railway company and of the contributory negligence of the passenger, was a question of fact for a jury: Foreman v. Missouri &c. R. Co., 4 Tex. Civ. App. 54; s. c. 23 S. W. Rep. 422. 63 Boggess v. Chesapeake &c. R. Co., 37 W. Va. 297; s. c. 16 S. E. Rep. 525. 4 Texas &c. R. Co. v. Bingham, 2 Tex. Civ. App. 278; s. c. 21 S. W. Rep. 569. in damages, although he may have been guilty of negligence in obeying the order; but, on the other hand, if he could have safely left the train at the time when the conductor gave the unlawful order, although the train was in motion, but nevertheless waited until the train had acquired a dangerous rate of speed and then obeyed the order, and in consequence of so acting was hurt, he can not recover damages. 65 § 2933. Circumstances where Passenger not Excused in Obeying such Advice.66-It has been held that the unlawful act of a person in attempting to steal a ride on a freight train contributes to his injury in jumping off, while the train is in motion, under the orders and threats of a brakeman, even if the orders and threats are wrongful, where the trespasser, instead of jumping off, could have kept away from the brakeman, for a considerable time at least, by going to the other end of the train. Nor does it follow that the passenger will under all circumstances be excused because he acts upon the advice of any particular agent, without regard to his rank or authority.s 67 69 § 2934. Contributory Negligence of Passengers under Disabilities. As elsewhere pointed out, the law, within reasonable limits, refuses to exclude the sick, the lame, the physically or mentally infirm, and children not of tender years, from the right to ride upon the vehicle of a public carrier, upon the payment of proper fare; and it 65 Southwestern R. Co. v. Single- advice to passengers in regard to ton, 67 Ga. 306. 66 This section is cited in § 2852. 67 Planz v. Boston &c. R. Co., 157 Mass. 377; s. c. 17 L. R. A. 835; 32 N. E. Rep. 356. The decision does not seem to be sound. es Thus, it has been held that the power to control the movements of a freight train is not within the apparent scope of the powers of a brakeman; and authority to do so can not be inferred by a shipper of stock. from the fact that on his previous trips brakemen, in the absence of the conductor, "generally acted with a good deal of authority in what they said and done," so as to justify him in assuming a position dangerous if the train moved, relying upon the brakeman's statement that it would remain stationary for some time: International &c. R. Co. v. Armstrong, 4 Tex. Civ. App. 146; s. c. 23 S. W. Rep. 236. So. it is not within the scope of the employment of a station agent to give boarding the trains; and, therefore, 69 Ante, §§ 2543, 2735. puts upon the carrier a greater degree of attention in protecting from danger passengers laboring under a known disability, than is imposed upon him in the case of an ordinary passenger. On the other hand, the law refuses to place the disability of a passenger, except, as in the case of drunkenness, due to his own fault, upon the footing of contributory negligence, or to impute contributory negligence to him because, under given circumstances, he may act erroneously in consequence of such disability. Stating it in the concrete, and upon. the highest judicial authority, it is the law that if a passenger is injured in consequence of the negligent management of the carrier's instruments of transportation, it will be no excuse for the carrier that the impaired faculties of the passenger materially contributed to his injuries, but the negligence of the carrier will be deemed in law the proximate cause of such injury.70 Such being the rule, the courts have refused to visit upon the injured passenger the consequences of contributory negligence, in the case of a boy eleven years of age, who, having notified the train-conductor that the train had arrived at his place of destination, was not advised by the latter that the train first ran by the station and then backed in; so that the boy, following the example of another passenger, leaped from the train while it was passing by the station, and was injured;" where a mother in charge of a three-year-old child occupies a seat on a cold day close to the stove, it being necessary for their comfort, in consequence of taking which position they are thrown against the stove. and injured in a collision;72 where the parents of a child, a healthy boy ten years of age, permit him to go on a railway train to do an errand two miles away, and to return by another train, which he knows will be signaled to stop near his home, and which ought to stop when signaled, where the conductor refuses so to stop, and the boy is injured in jumping off the train; where the parents of a boy twelve years of age permit him to go to a railway station without attendants, and he is killed by stumbling over an obstruction on the station platform, and rolling under the cars where a child seven years old, being a passenger on a steamship, while following his father on the deck, put his foot on a rudder chain, negligently left To Bridges v. London &c. R. Co., L. R. 7 H. L. 213; reversing s. c. L. R. 6 Q. B. 377; Patten v. Chicago &c. R. Co., 32 Wis. 524. 71 Hemingway v. Chicago &c. R. Co., 72 Wis. 42; s. c. 37 N. W. Rep. 807. 72 Texas &c. R. Co. v. Stuart, 1 Tex. Civ. App. 642; s. c. 20 S. W. Rep. 962. 73 Avey v. Galveston &c. R. Co., 81 Tex. 243; s. c. 17 S. W. Rep. 31. 74 New York &c. R. Co. v. Mushrush. 11 Ind. App. 192; s. c. 37 N. E. Rep. 954. exposed, by which his leg was drawn under the sheave or block, and crushed.75 78 § 2935. Contributory Negligence of Intoxicated Passengers.-As already seen, the fact that a passenger is voluntarily intoxicated does not constitute negligence per se, but is a circumstance tending to show negligence, which is to be considered by the jury." Intoxication of a passenger on a railroad train will bar a recovery for a negligent injury to him only where the intoxication contributed to the injury. A passenger does not, by reason of his voluntary intoxication, forfeit his right to care and protection at the hands of the carrier, but is entitled to the same care that is due to a sober passenger, to the end of protecting him from injury while on the train, and of discharging him from the train safely and in a reasonably safe situation.79 In determining this question, the rule is that the self-inflicted disability of intoxication does not excuse the passenger from the exercise of such care, to the end of promoting his own safety, as may justly be expected from a sober man.80 It is scarcely necessary to add that the mere fact that the passenger was drunk at the time of the accident will not be a defense on the ground of contributory negligence, unless it was the proximate cause of his injury or death.81 75 Garoni v. Compagnie Nationale De Navigation, 39 N. Y. St. Rep. 63; s. c. aff'd 131 N. Y. 614. 76 Ante, § 2740; Vol. I, §§ 196, 340, 341, 408, 452. "Kingston v. Fort Wayne &c. R. Co., 112 Mich. 40; s. c. 40 L. R. A. 131, 134; Newton v. Central &c. R. Co., 80 Hun (N. Y.) 491; s. c. 62 N. Y. St. Rep. 387; 30 N. Y. Supp. 488; s. c. aff'd 151 N. Y. 624; 45 N. E. Rep. 1133; Trumbull v. Erickson, 97, Fed. Rep. 891. 7 Central R. &c. Co. v. Phinazee, 93 Ga. 488; s. c. 21 S. E. Rep. 66. 79 Missouri &c. R. Co. v. Evans, 71 Tex. 361; s. c. 1 L. R. A. 476; Milliman v. New York &c. R. Co., 66 N. Y. 642; Fisher v. West Virginia &c. R. Co., 39 W. Va. 366; s. c. 23 L. R. A. 758; McClelland v. Louisville &c. R. Co., 94 Ind. 276. intoxication: Ham v. Delaware &c. Co., 142 Pa. St. 617; s. c. 21 Atl. Rep. 1012. 81 Central R. &c. Co. v. Phinazee, 93 Ga. 488; s. c. 21 S. E. Rep. 66. Accordingly, an instruction that if the deceased "got drunk under such circumstances as any reasonable, prudent man could foresee that he was putting himself in such a condition that this result might probably happen-if he did that under those circumstances, then his drunkenness would be a defense; but the mere fact that he was drunk, unless his drunkenness contributed as a proximate cause, would not be any defense," was held proper under the facts of the case: Davis v. Oregon &c. R. Co., 8 Or. 172. A passenger on a freight train who was partially intoxicated, instead of taking the safe seats designed for passengers along the sides of the car, sat on the conductor's chair, which was very near the open side door of the car. A jar produced by cars running together threw him out of the car, while the train, at a speed of thirty-five miles an hour, ran around a sharp curve. It was held that he 82 $2936. Contributory Negligence of Trespassers.-The rights of a trespasser on the vehicle of a common carrier will hereafter be considered, with the conclusion that he may recover, notwithstanding his unlawful act in boarding the vehicle, for an injury through any act of negligence which is special to him; for the law is not in such a state as to allow the servants of the carrier to maim him or kill him for the commission of a mere civil trespass. But, on the other hand, he can not, by his trespass, put upon the carrier or his servants the duty of burdening themselves with special care for his safety.83 On the other hand, if the trespasser is injured through the willful misconduct of the servants of the carrier, his own contributory negligence will be no defense, unless it consisted in the failure to take ordinary care for his own safety after being put in peril by the misconduct of the carrier's servants.85 § 2937. Instances where Contributory Negligence was Imputed.Contributory negligence has been imputed:-Where a shipper of stock on a freight train voluntarily went on top of the train, in obedience to an order or direction of the conductor, to help signal, and, while watching a brakeman trying to make a coupling, was severely injured by a sudden forward motion or jerk of the train, the reason being that he voluntarily placed himself in a position of known danger;86 where a shipper of stock attempted, while carrying bulky luggage, to climb the ladder of a cattle car on a dark and cloudy night while the train was in motion, and lost his hold while trying to save his valise, and fell;87 where a passenger on an excursion train seated himself upon a board not exceeding two and a half inches in thickness, and constituting the rear end of an open box car, in a position from which he would be thrown in case of a sudden jolt or jar, when he could have stood up in the car or found room in another car, and was injured by a sudden motion of the car caused by in was guilty of contributory negligence, and could not recover damages for the injury: Norfolk &c. R. Co. v. Ferguson, 79 Va. 241. 82 Post, § 3302, et seq. See also Vol. I, § 946, et seq.; Vol. II, § 1734, et seq. 83 For instance, it has been held that a street railway company is not liable for the death of a boy seventeen years old, of ordinary intelligence, experience, and judgment, caused by his being run over by a car while jumping on and off the front platform without permission, for the purpose of whipping the mules drawing the car, although his father had previously told the driver to keep him off the car: Taylor v. South Covington &c. Street R. Co., 14 Ky. L. Rep. 355; s. c. 20 S. W. Rep. 275 (no off. rep.) 94 Alabama &c. R. Co. v. Frazier, 93 Ala. 45; s. c. 9 South. Rep. 303. 85 Vol. I, § 240. 88 Atchison &c. R. Co. v. Lindley, 42 Kan. 714; s. c. 6 L. R. A. 646; 7 Rail. & Corp. L. J. 133; 41 Am. & Eng. Rail. Cas. 72. $7 Richmond &c. R. Co. v. Picklesimer, 89 Va. 389; s. c. 17 Va. L. J. 12; 16 S. E. Rep. 245. |