Louisville, New Orleans & Texas Ry. Co. v. Cooper

Campbell, J., delivered the opinion of the court. This verdict is manifestly wrong — indeed it is without any support in the evidence, as we view it. The plaintiff was doubly guilty of contributory negligence, first, in going on the trestle as she did, and, secondly, in not jumping from it, when she saw the approaching train. She went upon the trestle, either stupidly, and careless of danger, or recklessly, calculating that she could go over it before a train should come. She was not far wrong in her calculation, if she made one, for she very nearly escaped hurt — another step or two would have saved her. The track of the railroad was level and straight for more than a mile, as all agree, and the trestle was 212-J- feet long. There was nothing to obstruct a view of the train for more than a mile, and it is incredible that it was not seen, if looked for; and, if seen, it was fool-hardiness to go on the trestle before it. The trestle was not so high as to make it perilous to leap from it, and this the plaintiff should have done. Having placed herself in a position of danger, she should have taken some risk to escape from it. That the risk was very small, of any injury from jumping, is shown by the fact that one of the companions of the plaintiff fell off, and the other jumped off before the train without harm. If nothing appeared except injury to the plaintiff under these circumstances, no recovery could be had. The only question that remains is, whether, after the engineer saw the plaintiff in her perilous situation, he did all he should have done to avert harm from her. The only evidence that she was seen was furnished by the testimony of the engineer, who testified that he did all he could to avoid harm to the plaintiff, after he saw her peril. There is no just ground to doubt his statement. He was probably mistaken in supposing, as he says he did, that she was not on the trestle, when he first saw her. Nor is it surprising that he should be mistaken as to this, for it is often difficult to determine the exact position of one at a distance. Certain it is, that without the testimony of the engineer the plaintiff could not recover, because of contributory negligence indisputably shown; and, according to that testimony, amply sustained, she cannot recover, because all reasonable efforts were made to save her from harm. In truth, she could and should [371] have saved herself by leaping from the trestle. She erred in thinking she could cross in time, and cannot make the defendant pay for her mistake. The court would not have erred to direct a verdict for the defendant. . . Reversed and remanded.