Murray v. Southern Pac. Co.

MORROW, Circuit Judge (after stating the facts as above). [1] The rule respecting contributory negligence is clearly stated in 7 Am. & Eng. Ency. of Law (2d Ed.) 371, as follows: “Contributory negligence is a want of ordinary care upon the part of a person injured by the actionable negligence of another, combining and concurring with that negligence, and contributing to the injury as a proximate cause thereof, without which the injury would not have occurred.” It follows that the defense that tire injured person is chargeable with contributory negligence concedes that there was actionable negligence on the part of the defendánt. 29 Cyc. 506. [707] [2] Whether in this case the invitation of the brakeman to the deceased to alight from the train on the side opposite to the station after the train had stopped, coupled with the act of the brakeman in opening the gate, trap, and door on that side of the train and then, while the train was still in motion, leaving the platform to announce the station in the smoking car, constituted negligence on the part of the brakeman, and whether that negligence was attributable to the defendant, are not questions to be now determined. It is assumed, without so deciding, that the act of the brakeman was such negligence. The question here is, Did the deceased fail to use ordinary care in his movements in going down on the steps of the car while the train was in motion, and thus become chargeable with contributory negligence? The train was a vestibule train. On the outside it was dark. The deceased was unfamiliar with the locality. He was a strong, healthy man, in the possession of all his faculties, and knew that he was about to alight on the side of the train where there was no station and no platform, and that it was dangerous to go down on the steps of a vestibule train while the train was in motion. Moreover, the permission of the brakeman was not that he should go down on the steps of the car while the train was in motion, but that he should alight from the train on that side after the train had stopped. In going down on the steps of the car while the train was in motion, the deceased, not only assumed the risk of the situation, but he failed to use the care of an ordinarily prudent person. And then followed what we think was the fatal mistake of the deceased, growing out of a manifest lack of ordinary care in his movements. He carried a grip in his left hand. With his right hand he took hold of the handhold on the right-hand side of the steps, which on that side of the train was a hold in the opposite direction to the forward movement of the train. This was an exceedingly insecure and dangerous hold while the train was in motion, and unquestionably resulted in his fall from the train. When he fell, his back was toward the engine, showing that he had fallen backward. Had the unfortunate man carried his grip in his right hand and had taken hold of the handhold of the car with his left hand, facing forward (which, in the exercise of ordinary care, he should have done), he could have held himself securely on the steps with the motion of the train until it stopped, and the accident would have been avoided. These facts are not in dispute, nor are the inferences of fact to be drawn therefrom in substantial controversy. They are facts from which all reasonable men must draw the same conclusion. Grand Trunk Railway v. Ives, 144 U. S. 408, 417, 12 Sup. Ct. 679, 36 L. Ed. 485. In the case of Secor v. Toledo, Peoria & Warsaw R. Co., in the United States Circuit Court of Illinois, 10 Fed. 15, the question was whether a passenger who was injured in attempting to alight from a train while it was in motion was guilty of contributory negligence as a matter of law. The question arose in proceedings under a railroad receivership. The injured passenger presented a petition to the court, asking for compensation for the injury, to be paid by the receiver under the order of the court. Whether it was a claim to be [708] paid by the receiver was purely a 'question of law. The court states the facts as follows: “While the,train was still in motion the petitioner went out upon the rear end1 of the forward ear of the train and was standing on the lower step, the train having apparently almost ceased to move; and, while he was in the act of stepping from the car to the platform of the station, the car was moved forward with a jerk, in consequence of which the petitioner was suddenly thrown with violence upon the platform of the station and injured.” These facts, particularly the jerk óf the train throwing the petitioner upon the platform, presented a much stronger case in favor of the petitioner than is presented in favor of the plaintiffs in this case. Judge Drummond, in passing upon this petition, said: “We think it must be stated, as a sound proposition in law, that wherever passengers undertake to leave a train under such circumstances as these, before it has actually stopped, they take the risk upon themselves. If they choose to act in accordance with the promptings caused by their own impatience, and to leave the train before it can be done with safety, the risk is theirs. In this case, in addition to the statement that has been made of the actual condition of the petitioner at the time, there is reason to believe that his attention was withdrawn from what he was about to do by conversation with another person, who was then or had just been talking to him.” The general rule is that an adult passenger who knowingly and unnecessarily attempts to alight from a railroad train while it is in motion is chargeable with contributory negligence as a matter of law. Hoylman v. Kanawha & Michigan Railroad Co., 65 W. Va. 264, 64 S. E. 536, 22 L. R. A. (N. S.) 741, 17 Ann. Cas. 1149, and cases cited in note. We think the facts in the present case show conclusively as a matter' of law that the deceased was chargeable with contributory negligence, and that the trial court was right in granting a nonsuit. Judgment of the lower court affirmed.