Atlanta & West Point Railroad v. Dickerson

[455] Judgment reversed. “If the evidence shows that the plaintiff" was a passenger having paid his fare, and was injured by the failure of the agents of defendant to exercise extraordinary diligence, then plaintiff would be entitled to recover. Did the cars stop reasonably long for the plaintiff' using ordinary diligence to alight, and was the' proper signal for starting given before stalling ? If so, plaintiff cannot recover. If you find from the evidence that the ears stopped long enough for plaintiff, under the circumstances surrounding him by using'ordinary and reasonable diligence, to get off, and you further find that the proper signals to start ivere not given before starting said train, and you find from the evidence that the failure to give proper signals did not contribute to the injury, then the plaintiff cannot recover. If proper signals were not blown before starting, and by reason of this negligence plaintiff was hurt, he can recover. Defendant further says that plaintiff did not get off cars at the door and platform, the usual and only place or means provided for entering and leaving said cars, but jumped out of the baggage-car door. • Well, gentlemen, see how this is. If you find from the evidence that the contention of the defendant as to this is true, then, gentlemen, see whether a man of ordinary prudence and care would have thus jumped from the car under the circumstances then surrounding him. The law requires of plaintiff to use ordinary care and prudence in alighting, and if he failed to do this, he cannot recover if he was injured thereby. The defendant contends that the plaintiff] fearing that he would be carried on, jumped off of the cars while moving. "What do the facts show as to this ? If he jumped off] was he in the use of ordinary diligence to do this ? If he did not use ordinary diligence, he cannot recover. If plaintiff used ordinary diligence to alight and in fact had not alighted, and while he was in the act of getting off' the cars started without giving signal, and by reason thereof he was thrown from the cars and injured, he is entitled to recover.” P. H. Brewster, for plaintiff in error. Bigby, Reed & Berry, L. N. Meroier and ~W. A. Turner, contra.