Opinion
November 22, 1948.
1. Evidence — speed of train — estimate by witness.
When plaintiff as a witness testified that in his judgment the speed of the train from which he jumped in his haste to leave the train after assisting a passenger with her luggage was about fifteen miles an hour, but also testified that it was dark, the jury was entitled to consider that his rate of speed was only an estimate made in his haste to get off a moving train.
2. Carriers of passengers — knowledge of those in charge of train, and acquiescence in attempt of passenger to get off moving train.
When those in charge of a passenger train knew that with their consent plaintiff had entered to assist passenger with her luggage, and knew that plaintiff intended to get off the train, but started the train before he had time to do so, and then acquiesced in his attempt to get off without offering to stop the train for that purpose, and without raising the trap door to the steps, the defense that the consequent injury was solely by the negligence of the plaintiff cannot be maintained.
3. Carriers of passengers — duty to party assisting passengers with luggage.
When those in charge of a passenger train have permitted a party to enter to assist a passenger with her luggage and know that he intends immediately to get off, the carrier owed a duty to the party assisting not to start the train until he has had time to return to the entrance and there get off. And if those in charge had momentarily forgotten until after the train had started, it was then their duty to offer to stop the train or cause it to be stopped.
4. Carriers of passengers — custom of persons accompanying passengers to aid with luggage and duty of carrier in respect thereof.
One who, according to custom of which the courts may take judicial knowledge, accompanies a passenger into a passenger train to assist with luggage is entitled to have the carrier exercise ordinary care for his safety and protection while he is entering the car, while he is in it and while he is leaving it, notwithstanding he is a mere licensee. And where the purpose of such person in entering a train is known to the employee in charge of the train it is a duty of the carrier to give him a reasonable opportunity and time to render such assistance and safely leave the train.
5. Contributory negligence — mitigation of damages.
Contributory negligence will mitigate the amount of damages, but is not a bar to recovery unless its constitutes the sole proximate cause of the injury; hence, when a licensee has been negligent in attempting to jump from a moving train, his negligence will not bar a recovery if the violation of any duty owed to him by the carrier was then and there continuing as a contributing cause of his jumping off and sustaining injuries.
6. Carriers of passengers — licensee.
When a licensee to whom the carrier owed a duty to aid in getting off a train was, by the conduct of those in charge of the train, invited to jump from it while moving and without raising the trap door, the carrier will not be permitted to defend as a bar that the licensee should have remained on the train until reaching the next station stop, and whether the conduct of those in charge was tantamount to such an invitation was a question for the jury under proper instruction.
Headnotes as approved by McGehee, J.
APPEAL from the circuit court of Adams County; R.E. BENNETT, J.
Berger Callon, for appellant.
The duty of a carrier to persons assisting passengers in boarding trains has never been expressly decided by the Mississippi Supreme Court, but the rule is well stated in 10 C.J. 1362 as follows: "One who according to custom goes on a train to assist a passenger in entering or leaving such train is an invitee or a licensee, and although the carrier does not owe him the same degree of care that it owes a passenger, it does owe him ordinary care for his safety and protection while he is entering the car, while he is in it, and while he is leaving it. And especially is the such a duty where a passenger requires assistance which the employees of the carrier do not undertake to render or where the conductor of the train requests a third person to assist the passenger . . . Where the purpose of such person in entering a train to assist a passenger is known to the conductor, or other employee in charge of the train, it is the duty of the carrier to give him a reasonable opportunity and time to render such assistance and leave the train." The precise question presented by this appeal was before the Supreme Court of Alabama in Southern Railway Company v. Patterson, 41 So. 964, 148 Ala. 77.
In the instant case, appellee offered no testimony. The testimony of appellent stands uncontradicted. The undisputed evidence is that appellant accompanied his sister, an aged and infirm colored woman, to appellee's depot for the purpose of assisting her on the train with her baggage which was too heavy for her to carry; that appellee's employees failed to render, or offer to render her any assistance in boarding the train; that appellent obtained the permission of appellee's employees to assist his sister in boarding the train with her baggage and boarded and entered the train as aforesaid with the consent and knowledge of appellee's employees and agents; that he wasted no time after entering the train but diligently set about to seat his sister and deposit her baggage; and before he could accomplish his purpose, the train had started moving. The undisputed testimony further reveals that when the train started moving, appellant rushed to alight therefrom, and on his way to the door met the conductor and porter, and that the porter told him he could get off, opened the door for him, caught hold of his arm and told him to jump. That appellant jumped and was injured in so doing is not contradicted. The exact language of appellant's testimony which appears on pages 12 and 13 of the record is as follows: "The train stopped and I had some luggage for my sister-in-law and the porter was standing near by and I asked him if it would be all right for me to go on the train and assist my sister-in-law on — she was weak and sickly and had heavy luggage — and I asked if it would be all right for me to put it on and asked if I would have time and he said `Yes,' and I got on and while putting the baggage on the train — the train was a little crowded — and by the time I got the baggage placed the train started off. I rushed to get off, I saw the train was moving, and I started up the aisle to the door and met the conductor and porter coming down the aisle and I asked the porter if he would let me off, and he said `Yes,' so I turned and went to the door, and when I got to the door the trap was closed — this treadle that comes down to the door — was closed, and about that time the train was moving pretty fast, and he opened the door and caught hold of my arm and said `Jump out' and I jumped out. When I jumped out my shoulder fell against some cross ties, I hit the cross ties and fell on my knees and hands and sprained my wrist and ankle and back, spinal injury, and was injured internally and ruptured in my side." Appellant further elaborated on his testimony given above during the trial, and since all of appellant's testimony is undisputed, his statements must be accepted as true. Appellant testified that the train had gone about one block and moving at a rate of speed of about 15 miles per hour when he jumped, and this is the only evidence as to the real speed of the train or the distance which it had traveled when appellant jumped. We would like to call the court's attention to the fact that it was dark when appellant jumped and at best the foregoing could be only appellant's estimate of the speed of the train and the distance it had traveled. If there exists any question as to the speed of the train, it is most assuredly one for the jury to determine. The act of the porter in opening the door for appellant, and taking him by the arm and ordering him to jump from the train while it was moving, was an overt acts of negligence on the part of appellee, and we recpectfully submit that this court has never held that a carrier is not liable under such facts.
In Thompson v. Yazoo Mississippi Valley Railroad Company, 72 Miss. 715, 17 So. 229, this court held that where a boy thirteen years of age, a trespasser, who had boarded a moving freight train, was ordered by the conductor to get off while the train was yet in motion but running more slowly than when he got on, and in attempting to obey, he fell under the train and was injured, the question as to whether the conductor was negligent was for the jury. The opinion of the court in the above case contains a most intelligent discussion of the question involved in this case, from which the following is copied: "The ground taken by appellee's counsel is that the train was not moving at such rate of of speed as to make it negligence per se for the conductor to order such a boy as appellant was shown to be to get off the train, and the evidence favorable to appellee seems fairly to bring the case along and near the dividing line which separates two strongly defined classes of cases in which, to illustrate, the courts, as matter of law, should say whether, on the one hand, negligence per se is shown in one's jumping from a train running 40 miles an hour, or, on the other hand, should declare also, as a matter of law, that there was no negligence per se in leaving a train scarcely moving at all. In the first case, the danger to be encountered is obvious; in the second, the risk of hurt was infinitesimal. On the evidence for appellee, the case at bar falls in a third class, and lies in that debatable land where the jury, and not the court, must decide the question as one of fact."
It should be borne in mind that the above case was decided April 1, 1895, while contributory negligence was still a bar in Mississippi. Most certainly the train from which appellant jumped was not travelling at such a rate of speed that a person jumping therefrom, under the circumstances, was bound to be hurt. This is even more certain when we consider that the only evidence as to the real speed of the train was appellant's estimate, made at night time under circumstances of stress, which is purely conjectural. If there is any question as to what rate of speed a train should obtain before it becomes negligence for a person to jump therefrom, then that question is most certainly one for the jury to determine, and not for the courts.
It is appellant's contention that, even though this court might hold as a matter of law, that he was negligent in jumping from the moving train of appellee, such act on his part would not bar recovery since appellant would be guilty of contributory negligence only, and contributory negligence is not a bar to recovery in Mississippi today. As to whether or not appellant was guilty of any negligence at all, and if so, whether such negligence was wilful, are questions for twelve free and impartial men to pass upon, and the action of the court below in denying the appellant this right constitutes manifest error.
In sustaining appellee's motion, the court below based its decision on the Mississippi Supreme Court's ruling the case of Howell v. Illinois Central Railroad Company, 75 Miss. 242, 21 So. 746, wherein the court held that it was negligence as a matter of law for a bright active boy thirteen years old, a trespasser on a train, who knew the attendant danger, to voluntarily attempt to jump from a train which was running twenty miles an hour. This case, however, is so dissimilar to the instant case as to offer no fair guide for the determination of the issues in this case. In that case, the plaintiff was a trespasser on the defendant railroad company's train. He had not boarded defendant's train for the sole and express purpose of assisting a passenger thereon, and particularly a passenger who needed assistance which the company failed to render. Certainly it cannot be seriously contended that a railroad owes the same duty to a trespasser as to a business invitee such as we have in the case at bar. More over, the Howell case, supra was decided April 12, 1897, at which time contributory negligence was a bar to recovery in Mississippi and hence cannot be cited as in point.
In Illinois Central Railroad Company v. Brown, 39 So. 531, this court held that the plaintiff was entitled to recover where a 19 year old boy, a trespasser, was injured when he jumped from a freight train which was running at the rate of about 25 miles per hour, after being threatened and ordered to jump therefrom by the conductor. This case was also decided when contributory negligence was a bar to recovery in Mississippi.
We are, of course, mindful of that line of cases holding that, where a trespasser, or even a passenger, wilfully jumps from a moving train, travelling at a dangerous rate of speed, such acts, being the sole and proximate cause of injury, is so gross as to bar recovery. But here we do not have such a set of facts, and appellee would assume a tremendous burden to so allege in the face of appellant's testimony, which testimony is undisputed. Here we do not have a passenger boarding a train at point A for the purpose of traveling to point B, neither do we have a trespasser on appellee's train. On the contrary we have a person entering a train at Point A, for the sole and only purpose of assisting a passenger on such train, such passenger being an aged and infirm woman in need of assistance which the carrier failed to provide, by and with the knowledge of the agents of carrier, and with the intention of getting off such train immediately upon the completion of rendering such assistance. Here we have a person getting on a train at point A to perform a service which the carrier ought to perform, with no thought of travelling elsewhere, but for the avowed purpose of rendering a service and alighting from such train. By no stretch of the imagination can there be any similarity between this case and those cases holding that a trespasser is barred from recovery because of wilful negligence.
Luther A. Whittington and Jesse E. Johnson, Jr., for appellee.
Under all of the authorities that we have examined, it is negligence as a matter of law for any adult person, in the possession of ordinary understanding, to voluntarily undertake to jump off a train, in the dark, going fifteen miles an hour, from a platform or treadle that stood some four feet above the ground; and this is particularly true where a person undertakes to make such a jump as would land him eight or ten feet from the platform on to the ground, and where there is no necessity for the person to jump.
This honorable court, in the case of Bardwell v. Mobile Ohio Railroad Company, 63 Miss. 574, used the following language: "For a sane man, for his own convenience, to leap voluntarily in the dark from a railroad train running at the rate of from six to twelve miles an hour, is an act of such gross and reckless imprudence as to disbar him from recovering damages for injuries thereby sustained. . . . It has always been and will, probably, always be the law that one cannot compel another to indemnify him for loss or injury which, by his own rashness or folly, he has brought upon himself. And it makes no difference that the conductor advised appellant that it was safe to jump from the train, and directed him when and how to jump. The opinion and direction of the conductor constituted no legal excuse or justification for the exposure of life or limb to such peril. Appellant might as well have obeyed a suggestion from the conductor to ride on the cowcatcher or place himself on the truck before the advancing wheels of the locomotive. No matter what the conductor thought or said as to the safety of the venture, appellant was bound to exercise his own judgment and act as a reasonable and prudent man. He failed to do this and he must bear the consequences. He cannot visit them upon another."
Again in the case of Dowell v. Vicksburg M. Railroad, 61 Miss. 519, the plaintiff sued in Count I of his Declaration for injuries sustained while undertaking to board a moving train going from ten to twelve miles an hour, because he slipped on a broken step on the engine. It was charged that it was negligence for the company to allow the step to be in that defective condition and the defect occasioned the plaintiff's fall. There was a direct averment that if the step had not been broken and had not been defective, the plaintiff might not have fallen. But in that case, under the allegations of Court I, this honorable court said: "Recovery by the plaintiff could not have been permitted to stand and it was right to tell the jury so. The facts are undisputed and the inferences to be drawn from them are unmistakable. The plaintiff brought his misfortune on himself by his own recklessness and cannot visit its consequences on another. This is decisive against him under the first count of his declaration." As we understand the holding of the court on that particular count of the declaration, the immediate, direct and proximate cause of the injuries to plaintiff was undertaking to jump on a moving train, going from ten to twelve miles an hour and, even though the defendant railroad company had been negligent in allowing the step to become defective, still the court held that the proximate cause of the plaintiff's injury and the sole cause under the law was his gross negligence in undertaking to board a train going ten to twelve miles an hour. While the plaintiff in the Dowell case was an employee, rather than a member of the public, we do not conceive that that circumstance is of any importance in distinguishing the cases.
In the case of Thompson v. Y. M.V. Railroad Company, 72 Miss. 715, 17 So. 229, the evidence, as construed by the Supreme Court of Mississippi, was doubtful as to whether the conductor could be charged with knowledge that the danger to be encountered in ordering the plaintiff to get off a train moving at the rate of speed it was moving was obvious; that on the contrary, it could not be said that the risk of hurt was infinitesimal. The court therefore held that under such facts, it was a question for the jury to determine whether or not the conductor was guilty of negligence in ordering the boy to jump from the train, it appearing that the train was slowly moving and that he had jumped on the train safely and was immediately requested to get off, and the other boys who had jumped on with him had successfully gotten off at the request of the conductor. The pertinent holding of the court was that where the danger is not obvious and where the risk of hurt was infinitesimal, it would be a question for the jury to decide as to whether a reasonable man should have ordered the boy to jump from the moving train.
Let us assume, may it please the court, that under the identical facts and circumstances in this case, that the plaintiff jumped off the train while it was going forty miles an hour. Would this honorable court say that he would be entitled to recover for the consequent injuries received by him in such a grossly negligent and rash act? The only difference in the act then is that less injury would result perhaps from jumping from the train moving fifteen miles per hour than would result where the train was travelling forty miles per hour.
In other words, the question is squarely presented: Will this honorable court contenance the right of anyone to recover damages, received because of voluntarily jumping off a train going fifteen miles an hour, in the dark, from a platform or treadle some four feet above the ground and jumping in such a way that he lands eight feet from the train itself, against crossties that he could not see?
Can there by any excuse or justification for a man of ordinary intelligence, understanding and knowledge to subject himself, his life and limb to such a hazard?
The only excuse assigned by the plaintiff, appellant here, for this rash act is that he wasn't given sufficient time to alight from the train before it started moving.
The court will note in the declaration that plaintiff charged that the defendant railroad company (that is, the conductor and porter) knew that it was dangerous and hazardous to the person of the plaintiff to descend from a moving train. If the conductor or porter knew, or should have known, that it was dangerous and hazardous so to do, why does it not also follow that the plaintiff also knew or should have known that it was dangerous and hazardous to himself to jump off a moving train? The charge that the conductor and porter told him that the train was slowly moving and he could get off safely is not supported by plaintiff's own evidence. He does testify that the train was going fifteen miles an hour when he jumped and that the porter told him to jump, but this action of the porter affords no legal excuse or reason for him jumping. Such act would not be binding on the defendant, just as in the Bardwell case supra.
The plaintiff was bound to use ordinary care to protect himself from danger and if he voluntarly incurred the danger known to him — and he practically admits that it was known to him — as a reasonable man then the sole and proximate cause of his injury was the jumping off the train in the dark, while it was going fifteen miles an hour.
The plaintiff knew before he started to get off, or left the seat where he had placed the baggage, that the train was moving and it is apparent that the plaintiff knew and fully appreciated the danger of getting off the train while it was moving, for it appears that he spent as much time asking the conductor and porter, before he got on the train, whether is was permissible to get on whether he would have time to get off, and asking the conductor and porter as he started off the train if he could get off, as he spent in carrying the baggage on the train. This evidence clearly showed that the plaintiff appreciated the fact that it was dangerous to get off the train while it was moving. He was in no peril while on the train and if the defendant was negligent in not allowing him time to get off the train, it was such negligence as was fully known to, and appreciated by, him and against which he had the opportunity and right and duty to protect himself. The only protection that could have been afforded him — the only means of avoiding injuring himself, as he was bound to know — was simply not to jump off the train, going as fast as it was, in the dark.
In the declaration it was charged that the failure to stop the train long enough for the plaintiff to alight was the immediate, sole and proximate cause of his injury. He knew the effects of this negligence. He was confronted with the fact that the train was moving and despite this knowledge and despite the fact that the plaintiff fully knew and understood the consequent risk to himself of undertaking to jump off the train while it was in motion, nevertheless he did this rash and wholly reckless thing and sustained, because thereof, his injuries.
Can it be said that the plaintiff, who, knowing and appreciating the accomplished fact that the train was moving at a dangerous rate of speed before he even started to get off the train, and despite his knowledge and appreciation of the danger to be incurred in jumping off the train while in motion, proceeds to jump off of said train, thereby subjecting his life or his limb to great hazard, and who, then pleads that it was negligence for the defendant to start its train, before giving him reasonable time to get off, and that such was cause of his injuries, may then be heard to complain that the cause of his jumping off the train was that it had started before he had reasonable time to alight? All this simply points to the unerring conclusion that the sole and proximate cause of plaintiff's injury was his own gross negligence and rashness in jumping off a moving train, going fifteen miles an hour, in the dark and not knowing where he would land.
The contention that the negligence of the defendant in moving the train, before he had time to alight was the proximate cause of his injuries, is met by the undisputed fact that the plaintiff in this case knew that he had been precluded from safety alighting from the train before he started out of the coach, or undertook to jump therefrom, and all the evidence in this case shows that further, he knew it was wholly dangnerous for him to jump off the train at the rate of speed at which it was moving.
As we stated in the beginning, all the authorities hold that where one jumps off a moving train running at a dangerous rate of speed, any injury suffered by him is caused proximately and solely by his own rashness and recklessness.
This holding of the courts is based upon the maxim volenti non fit injuria which, as the court knows, means in plain English that one who voluntarily exposes himself to a known and appreciated danger due to the negligence of another, may not recover for injuries sustained. This maxim is the basis of the assumption of risk doctrine which has not been abolished in the state of Mississippi, except as to employer and employee. "The doctrine of incurred risk," "taking the risk or hazard incurred" or "running the risk" incident to a known and appreciated danger are other phrases which may be said to rest upon or be in their nature, effect and import equivalent to the principle of the maxim volenti non fit injuria.
This maxim is wholly sound as a matter of public policy, and it readily appears from the authorities which we have above cited to the effect that the rash and reckless act of one jumping off of a moving train, going at a dangerous rate of speed — as much as fifteen miles per hour — in the dark, is and can only be the sole and proximate cause of any injuries thereby sustained.
Counsel for appellant cannot avoid the force and effect of this maxim; they cannot dispute the gross, rash and reckless negligence of the appellant in jumping off the train. In effect, their theory is that the railroad company was guilty of negligence contributing to the injury, because the train was started before plaintiff had time to get off. He knew that he no longer had time to get off without jumping off. He consented or assented to his act. He voluntarily incurred the risk.
In applying the doctrine of incurred risk or assumption of risk, the question of contributory negligence does not enter. `Contributory negligence in such a case cannot properly be said to be an element therein, for certainly the voluntary act of a party in exposing himself to a known and appreciated danger is wholly incompatible with an act of negligence or carelessness, for it must be manifest that carelessness in regard to a matter is not the same as the exercise of a deliberate choice in respect thereto." Indiana National Gas Company v. O'Brien, 160 Ind. 266, 65 N.E. 918, 66 N.E. 742.
The maxim of volenti non fit injuria, or incurred risk, or taking the risk, simply means that when a person assents to that which he does — that is, when a person voluntary does an act, the danger of which is known to him and appreciated by him — the consequences of such act are not esteemed in law as an injury.
"The doctrine of assumption of risk is not invariably limited to cases arising out of contractual relationships between the parties, but in its broader aspects may extend to cases wherein defense is founded on theory of volenti non fit injuria." Dietz v. McGill, (Mo. App.) 104 S.W.2d 707-711.
That the assumption of risk or incurred risk doctrine is still applicable in Mississippi was recognized by this court in McDonald v. Wilmut Gas Oil Company, 180 Miss. 350, 176 So. 395, in which case the court held that where the owner of ox obtained grant of tenant to pasture ox on swampy land, ox was drowned in uncovered pipeline ditch of company which had right of way and owner of ox knew of condition of ditch before he pastured ox on premises, his assumption of risk barred recovery from the company for death of ox, even if he were licensee for consideration and first tenant were agent of company in making grant.
That the plaintiff knew it was dangerous to jump off the moving train is wholly established by his own evidence relating to the care he had taken in getting on the train and the inquiry as to whether he would have time to get off and as to the questions he asked the porter and conductor about getting off.
He had no legal right to leave this question either to the porter or the conductor. It was for him, in the exercise of ordinary care that a reasonably prudent person would exercise, to decide that for himself and it cannot be said that he was acting in any emergency whatsoever. He was acting solely for his own conevnience, knowing and appreciating the fact that the train had already started and was runninng at a rate of fifteen miles an hour when he voluntarily jumped off. Under the authorities first quoted, even if the porter told him to jump, such act on the part of the porter would not make the defendant liable.
We submit that the facts in this case were such that a judgment for the plaintiff could not have been allowed to stand and therefore the action of the lower court complained of, in granting peremptory instruction, is without merit.
This appeal is from the action of the trial court in granting a peremptory instruction in favor of the defendant, Illinois Central Railroad Company, at the close of the evidence offered by the plaintiff, Ozee McClellan, who sued for damages on account of personal injuries sustained in jumping from a moving passenger train under the circumstances hereinafter stated.
The proof discloses that the plaintiff, who was forty-nine years of age, had accompanied his sister-in-law, Mary Tidwell, to the railroad station at Port Gibson, Mississippi, where she boarded a northbound passenger train at about 7:45 p.m. on July 23, 1947. That as soon as those in charge of the train were ready to receive passengers abroad, the plaintiff, who was assisting his sister-in-law with her luggage, inquired of the train porter in the presence of the conductor at the entrance as to whether or not it would be all right for him to carry the luggage on the train, and whether he would have time to do so and then get off. That upon receiving an affirmative answer, and in the absence of any offer on the part of the porter to take this heavy luggage on the train for this passenger, the plaintiff accompanied her to a seat in the compartment provided for colored passengers, placed one of the suit cases into a rack, and before having time to properly place the other and larger one, noticed that the train had begun to move. That thereupon he began to retrace his steps without unnecessary delay, encountered the conductor in the aisle near the entrance, asked if he could get off, and received an affirmative answer from him in that behalf. That he rushed on by the conductor and was preceded by the porter to the platform where the trap door had been lowered over the steps, and where the door had been closed. That the porter thereupon opened the door and told him to jump when the train had moved about one block from the station.
(Hn 1) Plaintiff further testified, however, that when he jumped off the train, it was, according to his judgment, running about fifteen miles an hour; but since he testified elsewhere "Well, it was in the dark" the jury was entitled to consider that this rate of speed was necessarily only an estimate made in his haste to get off a moving train.
It was not shown that the plaintiff requested the conductor to stop the train, but merely inquired of the conductor as to whether he could get off and received an affirmative answer, as heretofore stated.
(Hn 2) The Court is of the opinion that the evidence was sufficient to show that the conductor understood that the plaintiff intended to get off the train and acquiesced in his undertaking to do so, without offering to stop the train for that purpose. That the opening of the door by the porter was an invitation to the plaintiff to get off without the trap door being so raised that he could go down the steps to alight therefrom nearer the ground than the distance he had to jump from the trap door platform above the steps.
(Hn 3) At any rate, the Railroad Company owed to the plaintiff the duty under the circumstances not to start the train until he had time to get off since those in charge knew the purpose for which he had entered the train, and that he intended to return to the entrance and get off. Moreover, if the starting of the train occurred while his intention to get off was momentarily overlooked or forgotten by those in charge thereof, then it became their duty to offer to stop the train, or cause the same to be stopped, in order that he could get off in safety.
(Hn 3) The practice is so prevalent as to be a matter of common knowledge that many passengers are in need of assistance in boarding trains with luggage, and that unless those in charge of a train offer such assistance, it must be rendered by some person accompanying the passenger to a station. This being true, the courts in other jurisdictions have recognized it to be the law that one who, according to such custom, goes on a train to assist a passenger in such manner, is entitled to have the railroad company exercise ordinary care for his safety and protection while he is entering the car, while he is in it, and while he is leaving it, notwithstanding that he is merely licensee or invitee, and not a passenger thereon. And, this is especially true where a passenger is in actual need of such assistance as was true in the instant case, and the employees of the carrier do not undertake to render it. And, where the purpose of such person in entering a train to assist a passenger is known to the conductor, or other employee in charge of the train, it is the duty of the carrier to give him a reasonable opportunity and time to render such assistance and safely leave the train. 10 C.J., Sec. 1362, page 943; 13 C.J.S., Carriers, Sec. 732, page 1372, and the cases there cited.
The precise question presented by the foregoing facts has not been previously presented to this Court for decision, and we shall therefore give the question the attention which we think its general importance requires. In the case of Southern R. Co. v. Patterson, 148 Ala. 77, 41 So. 964, 121 Am. St. Rep. 30, the Court said:
"The plaintiff received his injuries from a fall caused by stepping from one of the defendant's passenger trains while moving. It was shown both by the averments of the complaint and his testimony that he had boarded the train for the purpose solely of assisting an old lady, who was nearly blind, at her instance and request, to take passage upon it; and before he could locate her in a seat the train began to move out of the station. According to the averments of the complaint and his testimony, he had told the conductor in charge of the train, before boarding it, of the old lady's condition and of her need of assistance to get upon the train, and to secure a seat, and was requested by that officer to perform that service. It is undoubtedly the law that `a carrier owes a duty to persons who come upon a train accompanying passengers, with the intention of getting off before the train starts or for the purpose of meeting passengers who are about to alight. And especially is there such a duty when the passenger requires assistance which the servants of the carrier do not undertake to render. But if the servants of the carrier have not notice or knowledge of the intention of one thus coming on board to get off before the starting of the train, they owe him no additional duty as to affording him an opportunity to safely alight.' 6 Cyc. p. 615. But where the conductor of the train knows or should have known that the only purpose of the person assisting a passenger, needing assistance to board the train, is to assist the passenger to a seat, he is bound to give such person a reasonable opportunity to alight before starting it. And if, after the train is started, the person alights from it, and is injured, and his act of alighting is not under such circumstances as to make him guilty of contributory negligence, he is unquestionably entitled to recover the damages suffered by him. Louisville N.R. Co. v. Crunk, 119 Ind. 542, 21 N.E. 31, 12 Am. St. Rep. 443; Galloway v. Chicago R.I. P. Ry. Co., 87 Iowa 458, 54 N.W. 447; Evansville T.H.R. Co. v. Athon, 6 Ind. App. 295, 33 N.E. 469, 51 Am. St. Rep. 303; Wood on Railroads, Sec. 305, p. 1297, and note 2; 2 Redfield on the Law of Railways, p. 280; 4 Elliott on Railroads, Sec. 1578, p. 2458; note 29 Am. St. Rep. p. 54."
In that case the defendant railroad company sought to invoke the doctrine of contributory negligence, then a bar to recovery in the State of Alabama, but the Court declared: "Nor can it be affirmed, as a matter of law, that plaintiff's alighting from the train, while moving, under the circumstances shown, was an act of negligence which would defeat his recovery. Whether it was or not was a question for the jury. Central Railroad Banking Co. v. Miles, 88 Ala. 256, 6 So. 696; North Birmingham St. Ry. Co. v. Calderwood, 89 Ala. 247, 7 So. 360, 18 Am. St. Rep. 105; Montgomery Eufaula R. Co. v. Stewart, 91 Ala. 421, 424, 8 So. 708; Watkins v. Birmingham Railway Electric Co, 120 Ala. 147, 152, 24 So. 392, 43 L.R.A. 297, and authorities there cited. There was clearly no duty on plaintiff to request the conductor to stop the train, after it started, for him to alight. Miles' case, supra. He had the right to get off, and if injured in doing so he may recover if the conductor knew or ought to have known what his purpose was in boarding it, there being no dispute but that he was diligent in the service he was rendering, and in getting off he did no more than a prudent and careful man would have done."
The proviso, shown in the last clause of the above quotation, was evidently stated for the reason that contributory negligence was then a bar to a recovery in that State, and this is also shown by the last sentence in the first quoted paragraph from the opinion.
It is true that it is not shown in the Patterson case, supra, how fast the train was moving when the plaintiff alighted, but that would have a bearing only on the question of whether the railroad company would be entitled to have the jury instructed, as a matter of law, that the plaintiff was at the time guilty of negligence in the case at bar, which could be urged in mitigation of damages and not as a bar to recovery in this State unless constituting the sole, proximate cause. (Hn 5) In the instant case it may be conceded for the purpose of this decision, and for that purpose alone, that the plaintiff was guilty of gross negligence in jumping from this train while it was running at a rate of speed which he judged to be fifteen miles per hour instead of remaining on the train in safety while being carried to the next station. However, his negligence would not be a bar to a recovery of damages for the serious injuries which he claims that he sustained, if the negligence of the defendant, or its violation of the duty owned to him in starting the train before he had a reasonable time to get off, was continuing as a contributing cause of his jumping off of a moving train and sustaining such injuries.
(Hn 6) It is true that if the plaintiff had not jumped off of the train he would not have been injured, but it is likewise true that if he had been permitted to get off before the train started to move he would not have been injured in the manner complained of. Moreover, if those in charge of the train intended to permit him to alight therefrom while the train was moving, as the opening of the door, without the speed of the train being checked, would indicate, it would be for the jury to determine whether or not the defendant's negligence in not raising the trap door so as to permit him to alight from the bottom step was a direct, contributing cause to his injuries. While the plaintiff had theretofore had some experience in riding trains, those in charge thereof had no right to assume that he was experienced in jumping off moving trains, or that he could do so with reasonable safety. Hence, the defendant cannot be heard to say that the plaintiff should have remained on the train until it stopped at the next station when the undisputed proof discloses that the porter opened the door as an invitation to him to jump, and where, according to the testimony of the plaintiff, the porter actually told him to jump; and where the proof further shows that the conductor had agreed to let him off at that station. Then, too, since it is customary for a porter to let people on and off passenger trains, it would seem that he was acting within the apparent scope of such authority when inviting the plaintiff to jump off under the circumstances complained of, and especially in the absence of any attempt by the conductor to cause the train to be stopped or slowed down for that purpose under the facts testified to herein.
In the case of Thompson v. Yazoo M.V.R. Co., 72 Miss. 715, 17 So. 229, a boy thirteen years of age, who had boarded a moving freight train, was ordered by the conductor to get off while the train was yet in motion, but running more slowly than when he got on; and, in attempting to obey, the boy fell under the train, and was injured. It was held that the question as to whether the act of the conductor was negligent was for the jury. That issue was submitted to the jury, and with the result that a verdict was rendered in favor of the railroad company. On appeal, the plaintiff contended that he was entitled to a peremptory instruction on the ground of the alleged negligence of the conductor. It was held that the conductor was not negligent, as a matter of law, because the proof disclosed in that case that the boy was in the habit of jumping on and off of moving trains with safety under similar conditions to those involved in that case. And it was shown that the boy possessed as much dexterity in boarding and leaving trains as railroad men have; and then too, he was a trespasser to whom no such duty was owed as owing to the plaintiff in the case at bar.
In the case of Howell v. Illinois Cent. R. Co., 75 Miss. 242, 21 So. 746, 36 L.R.A. 545, it was held to be negligence, as a matter of law, for a bright, active boy, thirteen years old, a trespasser on a train, who knew the attendant danger, to voluntarily attempt to jump from a train which was running twenty miles an hour. At that time, contributory negligence was a bar to a recovery of damages in this State by a person so injured. The Court said in that case that the controlling question was whether or not the plaintiff was chargeable with contributory negligence, but there were other observations made in the course of the opinion which would tend to support the contention of the defendant in the case at bar, to the effect that the negligent act of the plaintiff was the sole, proximate cause of his injury.
In the Howell case, supra, the plaintiff was an expert in jumping on and off moving trains. He had done this for two years before his death, constantly in the daytime and on some few occasions at night. He had been repeatedly warned of the danger of this practice, and the statement of facts contained in the opinion of the Court in that case clearly discloses that the plaintiff knew that it was extremely dangerous, even for him, to make the attempt to jump off the train. The Court said, in discussing the rights of this trespasser, that: "On these facts we think the court could not have done otherwise than give the peremptory instruction. The controlling question in the case is whether the boy, Solon Howell, Jr., was, in his situation, and of his age, chargeable with contributory negligence." And, it was further stated in discussing the nonliability of the railroad company that: "It owed him — a trespasser — no duty save not wilfully to injure him . . . Trespassers cannot recover for mere negligent injury." And, the plaintiff was injured "because he attempted to get off voluntarily, or accidentally fell off. It was the getting off or falling off that caused the injury, without which it would not have occurred." In other words, the railroad company was at the time of the accident violating no duty that it owed to the plaintiff, and that being true his attempt to get off of the train, under he circumstances of that case, was the sole, proximate cause of his injury. The decision of nonliability could have well rested at that time on the plaintiff's contributory negligence, which would not defeat liability under the law of this State now in force.
We are therefore of the opinion that the instant case should have been submitted to the jury under proper instructions in accord with the legal principles hereinbefore stated.
Reversed and remanded.