that passengers are in the act of alighting."487 In another case, the facts were that the passenger, after the name of the station was called, went to the platform while the train was slowing up, and asked the conductor if it would stop there for water, and the conductor answered that it would. The passenger then got upon the lower step of the platform, and, when the train stopped at the usual landing place, tried to step off; but immediately, and without any notice or signal, the train started with a jerk, throwing the passenger to the ground and severely injuring him. The train then drew up at the water-tank, a few feet further on. It was held that he had a right of action against the company. The fact that he had taken a position upon the step of the platform before the train stopped did not preclude a recovery; for, although it may have been negligence in him thus to take an unauthorized and dangerous position, yet this negligence did not form an efficient cause of the injury, 488

490

§ 3025. Leaping from Train in Order to Avoid an Impending Peril, Real or Apparent.489-On a principle already considered, contributory negligence is not, as matter of law, imputed to a passenger who leaps from a railway train in order to avoid an impending danger, real or apparent, provided that the appearances of danger were such that the passenger, in the exercise of ordinary care, might. under the impulse of sudden fear thereby produced, be expected to perform such an act; but in such a case the question whether he acted negligently is a question for the jury,491-as where the passenger jumped from a rapidly moving train to escape from an impending collision.492 In such an emergency, the passenger is not held by the law to the exercise of his best judgment,493 but the propriety of his act must be measured by what a prudent person would be expected to do in a like situation.494

487

7 Keller v. Sioux City &c. R. Co., 27 Minn. 178, 182.

488 Wood v. Lake Shore &c. R. Co., 49 Mich. 370.

489 This section is cited in §§ 3558, 3631.

400 Vol. I, §§ 80, 81, 164, 175, 188, 195, 197, 255, 1272; Vol. II, § 2328; ante, § 2927.

491 Chitty v. St. Louis &c. R. Co., 148 Mo. 64; s. c. 49 S. W. Rep. 868.

492 Wilson v. Northern &c. R. Co., 26 Minn. 278; s. c. 37 Am. Rep. 410; Iron R. Co. v. Mowery, 36 Ohio St. 418; s. c. 38 Am. Rep. 597; Heath v. Glens Falls &c. St. R. Co., 90 Hun (N. Y.) 560; s. c. 71 N. Y. St. Rep. 29; 36 N. Y. Supp. 22; Quinn

v. Shamokin &c. R. Co., 7 Pa. Super. Ct. 19.

493 Heath v. Glens Falls &c. St. R. Co., 90 Hun' (N. Y.) 560; s. c. 71 N. Y. St. Rep. 29; 36 N. Y. Supp. 22.

404 Chitty v. St. Louis &c. R. Co.. 148 Mo. 64; s. c. 49 S. W. Rep. 868. One doubtful decision is found where a female passenger was injured by jumping from a passenger train when it was standing still, in the mistaken belief that there was danger of a collision with a freight train approaching from the rear. The car was standing on an embankment, and it was ten feet to the ground. It was held that she could not recover damages from the com

495

§ 3026. Further of Leaping from the Train under Impulse of Fear Produced by Negligence of Carrier.-The doctrine just considered, that a passenger does not incur the imputation of contributory negligence by reason of acting erroneously under the impulse of sudden fear produced by a catastrophe which has been brought about by the negligence of the carrier,-as where the car in which the passenger was, having become derailed, he leaped from the same and sustained an injury, when, if he had remained therein, he would not have been injured,—is constantly affirmed and applied.* This doctrine refers itself to the language of Lord Ellenborough in a leading case already considered: "If I place a man in such a situation that he must adopt a perilous alternative, I am responsible for the consequences. Therefore, if a passenger in a coach, by reason of peril arising from an accident for which the proprietors thereof are liable, is in so dangerous a situation as to render his leaping from the coach an act of reasonable precaution, and he leaps therefrom and injures himself, the proprietors are answerable to him in damages, though he might safely have retained his seat.97 And the rule here announced is applicable to passengers upon railway trains. Apprehending a collision of trains, a passenger is justified in seeking safety in an endeavor to leap from the car in which he is riding.498

27496

In

pany, because it was guilty of no negligence: Gulf &c. R. Co. v. Wallen, 65 Tex. 568. Another doubtful decision is to the effect that a passenger is guilty of contributory negligence as matter of law in jumping from a moving train, upon the exclamation of a brakeman to "jump," without looking out of the window, or otherwise attempting to ascertain whether any danger was imminent, there being no such danger: McPeak v. Missouri &c. R. Co., 128 Mo. 617; s. c. 30 S. W. Rep. 170. another case a passenger riding in a caboose of a freight train, was standing by the open door, when the train was moving at the rate of fourteen miles an hour. The car of the train which immediately preceded the caboose was loaded with lumber, which was so insecurely loaded on the car that a quantity of it fell therefrom. This so frightened the passenger that he leaped from the caboose, and was killed. The passengers who remained in the caboose were not injured. In an action for damages for the death of the passenger who leaped from the caboose, the jury found a general

this general verdict and this special finding, it was held that there could be no recovery: Woolery v. Louisville &c. R. Co., 107 Ind. 381; s. c. 5 West. Rep. 667.

495 Wilson v. Northern Pac. R. Co., 26 Minn. 278; La Prelle v. Fordyce, 4 Tex. Civ. App. 391; s. c. 23 S. W. Rep. 453; Jones v. Chicago &c. R. Co., 42 Minn. 183; s. c. 11 Rail. & Corp. L. J. 113; 41 Am. & Eng. Rail. Cas. 169; 43 N. W. Rep. 1114; Shankenbery v. Metropolitan St. R. Co., 46 Fed. Rep. 177.

496 Jones v. Boyce, 1 Stark. 493; s. c. Thomp. Carr. Pass. 246.

497 Jones v. Boyce, supra; Ingalls v. Bills, 9 Metc. (Mass.) 1; s. c. Thomp. Carr. Pass. 112; Stokes v. Saltonstall, 13 Pet. (U. S.) 181; s. c. Thomp. Carr. Pass. 183; McKinney v. Neil, 1 McLean (U. S.) 540; Frink v. Potter, 17 Ill. 406.

499 Buel v. New York &c. R. Co., 31

On the other hand, although some degree of danger may be imminent to a passenger remaining on board the train, yet the conduct of the passenger in leaping from the train may evince such rashness that he is not entitled to recover.499 It must be constantly kept in mind that this doctrine is predicated upon the premise that the impending peril, or the appearance of impending peril which alarmed the passenger and induced him to act as he did, was brought about by the negligence or other wrong of the carrier. Hence, it has been well reasoned that, to render a railway carrier liable for injuries to a passenger produced by his jumping off the train while in motion, in consequence of a false alarm of danger given by a brakeman, the act of the brakeman, in causing the alarm, must have been such as might properly be ascribed to negligence.50

500

§ 3027. Leaping from the Train under Advice or Commands of Carrier's Servants.501-On grounds already considered,502 a passenger who is injured in consequence of leaping from a railway train while in motion, in compliance with the advice, the commands or the threats of the servant of the carrier, will be excused from the imputation of contributory negligence, in many cases where he would have been subject to such an imputation if the act had been purely voluntary on his part, and uninfluenced by the servants of the carrier. The courts reason that those servants are, in consequence of their experience, much more capable of judging whether the train has acquired such speed, or is in such a situation that the act of leaping from it will be dangerous to the passenger; and that a passenger will naturally, in the exercise of that care which men and women ordinarily take of their own personal safety, defer to such advice,

N. Y. 314; Eldridge v. Long Island &c. R. Co., 1 Sandf. (N. Y.) S. C. 89; South-Western R. Co. v. Paulk, 24 Ga. 356; Wilson v. Northern Pac. R. Co., 26 Minn. 278; s. c. 10 Cent. L. J. 56. But see Collins v. Albany &c. R. Co., 12 Barb. (N. Y.) 492.

499 Galena &c. R. Co. v. Yarwood, 15 Ill. 468; s. c. 17 Ill. 509; Galena &c. R. Co. v. Fay, 16 Ill. 558; Hill v. New Orleans &c. R. Co., 11 La. An. 292; Mobile &c. R. Co. v. Klein, 43 Ill. App. 63.

500 Ephland v. Missouri &c. R. Co., 57 Mo. App. 147. One court has reasoned that a passenger is justified in jumping from a railway car which has become partially derailed, for the purpose of escaping apparent serious bodily injury, though the car is still in motion, unless he thereby

encounters a seemingly greater darger: La Prelle v. Fordyce, 4 Tex Civ. App. 391; s. c. 23 S. W. Rep. 453. After instructing the jury that a passenger injured while cars were being coupled was bound to use ordinary care and diligence to avoid injury, it is not error to refer it to the jury whether or not, under the circumstances, he ought to have left the car or taken the seat nearest to where he stood when he discovered the danger: Chattanooga &c. R. Co. v. Huggins. 89 Ga. 494; s. c. 52 Am. & Eng. Rail. Cas. 473; 15 S. E. Rep. 848.

501 This section is cited in § 2848. 502 Ante. §§ 2931, 2932. As to the duty of giving advice and assistance, see ante, § 2843, et seq.

or yield to such commands or threats, where they would not otherwise do the act which results in their injury.50 In such cases, unless the danger of acting upon the advice, or yielding to the commands or threats, is obvious and glaring, the courts will be inclined to hold the question of the contributory negligence of the passenger to be a question for a jury.504

§ 3028. Circumstances under which Contributory Negligence Ascribed to such Acts.-It must not be supposed from the foregoing that in every case where a passenger or a trespasser leaps from a moving railway train, under the advice or command of the conductor or other employé of the railway company, he will be exonerated from the imputation of contributory negligence. If, not