Kilpatrick v. Penna. R. Co.

Opinion, Mr. Justice Williams: Three questions were submitted to the jury on the trial in the court below. These were, whether the plaintiff received any injury whatever in alighting from defendant’s cars at Queen’s Lane; whether the defendant was guilty of negligence in the managemqnt of the train on which the plaintiff was a passenger; and whether the plaintiff was guilty of contributory negligence in attempting to leave the train as she did. No complaint is made of the manner in which the first and second of these questions were submitted, but the errors assigned relate to the instructions given to the jury in regard to the third. The plaintiff sought to recover on the allegation that, as she was stepping down to the platform at the station, the train suddenly moved, threw her from her feet and against the car, so that she was badly bruised and permanently injured. The defence was that she was not thrown from her feet or against the ear or injured in any manner, but that if injured it was due to her own negligence in attempting to leave a train in motion after being warned not to do so. Two gentlemen who were passengers on the same train saw her descending the steps, and went to and warned her not to attempt to leave the [508] car until it had stopped. She disregarded the warning, left the train while it was moving, and alleges that she was thrown violently against the car and the railing at the end of the platform in front of the car. If the jury believed that she was hurt, it was therefore important to inquire whether her injury was due to her own want of care. The defendant’s counsel presented a point in which they asked the court to charge: “ If the jury believe that the plaintiff attempted to get off while the train was in motion, in disregard of the warning not to do so, she was guilty of negligeñce and cannot recover.” This point was affirmed, and the same principle was stated in the general charge. The plaintiff admits that if the notice had come from the conductor or other trainman it would have been negligence to disregard it, but insists that as it came from fellow passengers it stands on wholly different ground. The position is thus stated by the appellant: “ Because a passenger warns a fellow passenger to do or not to do a particular thing, the doing of it or the failure to do it does not constitute negligence per se. It may be proper to submit to a jury what a fellow passenger says, as a fact tending to prove negligence; but we submit it is not negligence as matter of law to disobey a fellow passenger.” This is specious, but it is hardly fair to the learned judge. He did not lay down any general rule requiring one passenger to obey the directions of another, or to heed the warnings of another. What he did say was, “ If the jury believe that the plaintiff attempted to get off while the train was in motion, in disregard of the warning not to do so, she' was guilty of negligence.” She might not have noticed that the train was moving, or, if noticing it, she may not have understood that it would stop for her to get off. Those who were near her and saw her danger, therefore, went out on the platform and told her to wait till the train should stop, one of them saying, “ For God’s sake, don’t attempt to get off here; the train is in motion.” It did not matter who pointed out her danger to her. It was enough if her attention was drawn to it. It then became her duty, not to obey any particular person or direction, but to avoid the danger to which her attention was called, and not to do so was negligence. If she had been approaching a grade crossing, and Mr. Craig had been standing near, and, seeing a train [509] approaching, had called out to her, as he did when she was about to alight at Queen’s Lane, “For God’s sake, don’t attempt ” to cross, for there is a train coming, and she had gone forward notwithstanding, and been hurt, there could bo no doubt of her negligence. She is not bound to obey the warning, but she disregards it at her peril. It gives her notice of her danger, and if she nevertheless exposes herself to it, she has no one but herself to blame if she is injured by it. Such was her situation on the day of the alleged injury. She was about to expose herself to a danger which it was apparent she did not realize. Those near her warned her earnestly not to do so. She disregarded their warning, took the risk they urged her not to take, and, as she says, was seriously hurt. Why ? Because she took the risk of exposing herself unnecessarily to a danger to which her attention was distinctly called. The appellant complains that the learned judge said to the jury: “ Did he (Craig) warn her not to get off ? If he did, then it was her duty to have heeded his warning; ” and her counsel ask: “ Why is this unlimited power placed in Hopkinson and Craig? ” The reply is that there is no power whatever placed in them. She Avas under no legal obligation to obey them. The duty of Avhieh the learned judge speaks is not one which she owed to them, but to herself. She owed it to herself to avoid a known danger ; and when she was Avarned by those about her not to leave the train until it stopped, the danger was pointed out, if it had been unknoAvn before. If then she chose to take the chances of escaping safely, she must not complain if the chance turns against her. The assignments of error are not sustained, and The judgment of the court below is affirmed.