Butler v. St. Paul & Duluth Railroad

Mitchell, J. This was an action to recover for personal inj uries alleged to have been caused by the negligence of defendant’s servants in the management of a train upon which plaintiff was a passenger. The plaintiff entered the train at White Bear station, for the purpose of going to Lake Shore, a half mile distant, which was merely a flag or signal station. The plaintiff’s testimony tended to prove that he notified the brakeman that he desired to get off at Lake Shore station; that the brakeman gave him to understand that the train would be stopped to let him off; that, as the train approached the station, it began to slow up as if for the purpose of stopping; that thereupon plaintiff went out upon the platform of the car, and stepped down upon the lower step for the purpose of getting off as soon as the train stopped; that, while he stood in this position, the train came almost to a standstill, and then, without stopping, was started ahead again with a violent jerk, which caused plaintiff to lose his balance, and threw him partially down; that he clung to the railing, with one foot on the step, but seeing that the train was increasing its speed, and being unable to regain his footing on the steps, he let go, and dropped himself upon the ground, and sustained the injuries complained of; that the-point at which he was thrown down by the jerk was about fifty feet past the depot; that from that point to where he let go was about [141] one hundred feet; that “after he struck the ground he must have gone a rod or such a matter, over a cattle guard.” On the other hand, the evidence on part of the defendant tended to prove that plaintiff never notified any of the employés on' the train that he wanted to get off at Lake Shore station; that none of them knew that he desired to do so; that, upon approaching the station, the engineer, as was the custom, slowed up the speed of the train in order to ascertain if any one desired to get on or off; that, receiving no signal to that effect, he let on steam again, and increased the speed of the train; that plaintiff, after he had passed the depot some considerable distance, and without the knowledge of any of the employés on the train, attempted to jump or alight from the car to the ground when the train was going at the rate of from eight to twelve miles an hour, and in doing so received the injuries complained of. The circumstances tend very strongly to corroborate the contention of the defendant; but of course the question which version of the occurrence was correct was for the jury. Upon this state of the evidence the court instructed the jury “that, if this accident occurred while plaintiff was in the act of getting off the car while it was in motion, then he cannot recover.” It is entirely clear from the record that what the court meant, and what the jury must have understood him as meaning, by “getting off the car,” was, not going upon the steps of the platform, but jumping or alighting from the steps to the ground. After a verdict for defendant, the court, on plaintiff’s motion, granted a new trial solely upon the ground that this instruction was erroneous; that the question whether alighting from the car while in motion was a negligent act should have been left to the jury. We are of the opinion that the instruction was, as applied to the facts of this case, correct, and therefore that a new trial should not have been granted. The instruction was only applicable in case the jury found that the plaintiff voluntarily alighted from the moving car, which the jury must be assumed to have found to have been the fact. It is undisputed that the accident occurred about half past two o’clock in the daytime; that plaintiff was in full possession of all his faculties; that he was not invited or instructed by any of the train employés to alight from the moving train; that there was nothing to divert or distract his attention, or to cause him to act under [142] any sudden impulse, or under apprehension of impending peril; that there was no necessity, or even occasion, for his alighting from the moving car, except to avoid the slight inconvenience of being carried past his destination,- — in short, that the act was purely voluntary, and not done under any exceptional or peculiar circumstances. Furthermore, as plaintiff could have “struck the ground” but once upon leaving or getting off the car, it necessarily follows that if, instead of being thrown down by the jerk of the train, as he claims, he voluntarily alighted from the car, the place where he thus alighted must have been where he “struck the ground,” which, according to his own testimony, was at least one hundred and fifty feet beyond the station, where there was no platform, and where he would have to jump from the car step to the level of the ground. The great contention of counsel is that, even if plaintiff voluntarily alighted, the court was not justified in holding that this was negligence per se, because there was evidence tending to prove that the train was “moving very slow,” “coming to a perfect standstill,” “almost to a stop.” Whatever the evidence may tend to show as to the previous speed of the train, there is none tending to prove that it was moving at such slow rate of speed when plaintiff reached a point one hundred and fifty feet past the station, where, if at all, he attempted to alight. On the contrary, the physical fact (admitted by plaintiff himself) that, after he “struck the ground,” the momentum which he had acquired from the forward motion of the train carried him “a rod or such a matter,” demonstrates that the train must have been moving at a considerable rate of speed. It seems to us that there is no room for any other conclusion, among men of reasonable intelligence and prudence, than that to attempt to alight from a moving train under such circumstances was negligent almost to the verge of recklessness. We do not hold that it would be negligence per se, under all circumstances, to attempt to alight from, or to get onto, a moving car. There are circumstances under which a person might do so without being chargeable with negligence, or at least where the question would be one for the jury; as, for example, when the person is invited or directed to do so by the employés of the company, or when the act is done under apprehension of impending peril, or where the circumstances are peculiarly favorable, as wrhere the car is barely in [143] motion, or moving very slowly, opposite a platform, and the person is physically active, and his freedom of motion is unimpeded. But, except under such or similar exceptional and peculiar circumstances, we think that principle, as well as public policy, requires it to be held that the voluntary act of a person attempting to alight from a moving train should be held negligence per se, or at least he should be held to have voluntarily assumed all the risks incident to such an act, and that the railway company should not be held liable for the consequences unless it is guilty of some separate and independent act of negligence (other than merely failing to stop at the station), which proximately caused the injury. If the particular facts of the cases are carefully considered, it will be found that there was nothing contrary to this view decided in either Jones v. Chicago, M. & St. P. Ry. Co., 42 Minn. 183, (43 N. W. 1114,) or Sahlgaard v. St. Paul City Ry. Co., 48 Minn. 232, (51 N. W. 111.) In many cases there will be found the general statement that it is not necessarily negligence per se to alight from a moving train ; that this is a question for the jury. But such, remarks must always be construed with reference to the particular facts of the case under consideration. Both reason and policy require that the rule as to getting on or off moving trains should be much the same as that regarding “looking and listening” at railway crossings, and that the act of commission in the one case, like that of omission in the other, should be deemed negligence unless under peculiar and exceptional circumstances. The duties of carriers and of passengers are reciprocal. If carriers are held to the highest degree of care for the safety of passengers, the latter ought to be held to the exercise of ordinary care to protect themselves. To borrow the pertinent language of Justice Black in Railroad Co. v. Aspell, 23 Pa. St. 147: “Locomotives are not the only things that may go off too fast, and railroad accidents are not always produced by the misconduct of agents. A large proportion of them is caused by the recklessness of passengers. This is a great evil which we would wittingly encourage by allowing a premium on it to be extorted from companies.” If a passenger is negligently carried beyond his destination, where he has a right to be let off, he can recover compensation for the con [144] sequent inconvenience, expense, and loss of time; but, if be is careless or foolhardy enough to attempt to alight from the moving train, it ought to be understood that, except under exceptional or peculiar circumstances justifying or excusing the act, he does so at his own risk. There are no such circumstances in this case. Order reversed. Gíleillan, C. J., absent on account of sickness; took no part. (Opinion published CO N. W. 1090.)