St. Louis, Iron Mountain & Southern Railway Co. v. Duffey

Hart, J., (after stating the facts). (1) Counsel for the defendant assigns as error the action of the court in refusing to give instruction No. 13. The instruction is as follows: “If you 'believe plaintiff jumped from the moving train because defendant’s train operatives threatened to have him arrested when he got to Texarkana, and further believe that the train was at the time he jumped off, going too fast for an ordinary prudent person to alight therefrom, in safety, your verdict should be for the defendant.” (2) We think the court should have given the instruction. Unless the danger of alighting from a moving train is obvious, a passenger will be justified in relying upon the direction of those in charge of the train to do so, to the extent that he will not be guilty of contributory negligence as a matter of law. (3) It is equally well settled that some force or threat of bodily harm or effort to eject a passenger must have been used before a passenger is justified in attempting to alight from a rapidly moving train. In the case of Little Rock & Ft. Smith Ry. Co. v. Atkins, 46 Ark. 423, the court said: “Whether it was culpable or excusable, depends on the rapidity of the motion, the fact whether it is day or night, the distance from the car to the ground or other surface upon which the passenger proposes to alight, the age and vigor of the party, and whether he takes the risk by the command or encouragement of the company’s agents in charge of the train, or to escape a greater peril.” In the case of Sibley, Receiver, et al. v. Smith, 46 Ark. 275, the plaintiff claimed that he had been compelled by threats and intimidation on tlie part of the conductor to jump off a moving train. The principal question was as to the right to compel a personal examination of the plaintiff as to his personal injuries. The court reversed the judgment because the injuries were of a permanent nature and the lower court refused to compel the plaintiff to submit to a medical examination. On the question now under consideration, the court said: “It was not disputed that the plaintiff leaped from the train while it was in rapid motion. The court referred it to the jury, under appropriate instructions, to say whether he acted voluntarily, or from a fear, generated by the conduct of the conductor, that worse consequence might befall him if he attempted to remain in the car.” In the case of St. Louis, I. M. & S. Ry. Co. v. Rosenberry, 45 Ark. 256, the plaintiff claimed that he was induced to jump from the train by the threats of the conductor to eject him, accompanied by a show of force. There the court said: “To be forcibly ejected from a moving train would, obviously, be attended with more danger than to leap from it, and if the appellee had been justified in the belief that he would be ejected if he did not go voluntarily or without force, no blame could be attached to his conduct. In such case the railroad, being the author of the original peril, would be answerable for the consequences.” (4) It follows from the principles announced in these opinions that the mere threat on the part of the train officials to have the plaintiff arrested when the train arrived at Texarkana was not enough to justify plaintiff in leaving the rapidly moving train. The mere threat to have him arrested, not accompanied by force or by a threat of immediate bodily harm, was not enough. The dictates of ordinary prudence are not to be disregarded and a mere threat of arrest, by whomsoever uttered, did not justify the plaintiff in incurring an obvious risk. The refusal of the court to give the instruction touching this phase of the case was prejudicial error. The plaintiff testified that the train auditor threatened to have him and his companion arrested as soon as he discovered that they had a bottle of whiskey. The train auditor admitted this fact. It was also shown that the plaintiff had a pistol in his pocket, and it was the theory of the railroad company that he was afraid he would be arrested for carrying a pistol and for that reason jumped off the train while it was moving rapidly. We think the railroad company had a right to have its contention presented to the jury in a concrete form. This is especially true when we consider that the instructions given at the request of the plaintiff were of a general character. The instruction given’ at the request of the plaintiff upon which he predicated his right to recover is as follows: “If you find from a preponderance of the evidence that plaintiff was a passenger on one of defendant’s trains, and that by reason of threats or any intimidation whatever the servants or any servant of the defendants engaged in the operation of the train so alarmed or terrified plaintiff as to induce him to put himself in a place of danger while the train was in rapid motion, and while in such place he was pushed or knocked off the train by any of said servants or while so there in the exercise of ordinary, care for his own safety, he was jolted off by the movements of the train and injured, then you will find for the plaintiff. ’ ’ (5) It will be observed that the instruction is of a very general character and allows the plaintiff to recover if he put ‘himself in a place of danger while the train was in rapid motion by reason of threats or any intimidation whatever. The plaintiff would not be justified in leaving a rapidly moving train by reason of a threat to have 'him arrested or even by the mere command of those in charge of the train. There must be some show of force,. threat of bodily harm, threat to eject him, or some overbearing intimidation in order to make the company liable where the danger is evident. Of course, as we have already seen, a passenger will be justified in relying upon the direction or command of those in charge of the train to alight from a slowly moving train while it is in motion, unless the danger of doing so is obvious. The reason for this is that the passenger has a right to rely upon the superior knowledge of the trainmen. It is also earnestly insisted that there was no evidence to support the verdict. We are of the opinion, however, that the evidence of the plaintiff, if believed by the jury, was sufficient evidence to warrant the verdict. For the error in refusing instruction No. 13, as requested by the defendant, the judgment must be reversed and the cause remanded for a new trial.