Bosworth v. Walker

WOODS, Circuit Judge, after making the foregoing statement, delivered the opinion of the court. While the court instructed the jury quite fully upon the theory of the plaintiff that he was compelled by threats and manifestations of force to leave tlie train, and that the defendant was liable for an injury so caused, there is in the charge no presentation of the theory of defense, in support of which there is no lack of evidence in the record, that the attempt of the defendant in error to leave the train [60] while it was in motion was a voluntary act, for the consequences of which the receiver was not responsible. By the charge given the jury was told that the company was liable to the plaintiff if the evidence showed “that force or intimidation was used, or that he was threatened and menaced, or required to get off.-” That was equiva- ' lent to saying that a mere requirement or command of the conductor, unattended with force or threat, was enough. Such a requirement, it may well be supposed, might lead an inexperienced or inconsiderate person to assume or believe that obedience would be safe; but, if the danger is perceived and understood, obedience to such a command is essentially a voluntary act. By his own statement the defendant in error, when required to leave the train, perceived and apprehended the peril of so doing; and, even if he understood the speech of the conductor to be a command which required instant obedience, he was not bound to obey, and, in the absence of force or overpowering intimidation, was not justified in incurring the manifest hazard of attempting to get off while the train was in rapid motion. The dictates of ordinary prudence are not to be disregarded, and no persuasion, request, or command, by whomsoever uttered', can justify the incurring of imminent and obvious risk. The refusal to give any of the requested instructions touching this phase of the case was error which cannot be regarded as immaterial. ■ The judgment of the circuit court is therefore reversed, and the cause remanded, with instructions to grant a new trial.