The opinion of the court was delivered by
Joi-iNSTON, J. :
The first contention of the railroad company is that, upon the pleadings, judgment should have been given in its favor. The basis of this claim is that contributory negligence was set up as a defense in the answer of the railroad company, and that as there was no reply or denial of the averment of contributory negligence it must be taken as true. The petition alleged that the deceased was in the exercise of care when he attempted to alight from the train upon the order of the conductor, and the answer of the company contained a general denial of all the aver-[496]*496ments of the petition. If any reply was necessary-to close the issue it appears to have been overlooked and waived by the parties and to have been regarded as unnecessary by the court. The parties evidently proceeded upon the theory that an issue had been fairly raised as to whether Hughes was in the exercise of due care when the fatality occurred. A great part of the testimony produced at the instance of the parties bore upon that question, and no objection was made by the railroad company that the pleadings were insufficient, nor that the absence of a reply entitled it to a judgment. At the commencement of the trial an objection was made to the admission of any testimony, but the ground of the objection was that the petition failed to state sufficient facts to constitute a cause of action ; and at the end of the testimony offered to sustain the allegations of the petition, a demurrer to the evidence was interposed, which was overruled. Neither of these objections called the attention of the court to the necessity or omission of a reply. In view of the conduct of the parties in the course of the trial, the objection that there was no reply comes too late, and cannot be heard for the first time in the supreme court.
The next contention of the railroad company is that the conduct of the deceased in attempting to alight from the train on a dark night when it was in motion was reckless negligence, although he may have been invited or commanded by the conductor to do so, and therefore the court erred in refusing the request of the defendant to instruct the jury to return a verdict in its favor. On the night of March 19, 1890, John Hughes, his boy, who was about 11 years old, James O’Melia, his father-in-law, who was about 68 years old, and Alex. O'Melia, his brotlier-in-]aw, about 26 years [497]*497of age, boarded a regular passenger-train of the railroad company at Scranton for the purpose of riding to Peter-ton, a station about 12 miles away. Hughes and the elder O’Melia took seats near together in the front end* of a coach, while the younger O’Melia and the boy found seats in the rear end of the same coach. Alex. O’Melia liad procured the tickets for the party, and they were taken up by the conductor shortly after the departure from Scranton. The testimony of the plaintiff below tended to show that before reaching Peterton the conductor told Alex. O’Melia that the train would not come to a full stop at Peterton but would only slow up for them to get off, when Alex, responded that the train ought to be stopped to enable the two older men who were sitting at the front end of the coach to get off, and in reply the conductor advised him to take care of himself and let the others take care of themselves. It tended to show that after the whistle had been sounded for the station, and as they approached the station of Peterton, Hughes and James O’Melia were told that this was their station, and to get up and get off, which they proceeded to do. Alex. O ’ Melia and the boy went out on the rear platform of the coach ; and when they arrived at the station and the train was running slowly, Alex, took the boy in his arms and jumped upon the platform. The conductor was on the platform of the next car, and inquired if all were off, when Alex, told him that they were not. Nevertheless, the conductor gave a signal, and the train c'ommenced to run faster. Alex, walked a few steps along the platform and found his father lying on his face and hands, and a little further along, and beyond the platform, the body of Hughes was found in a mangled condition. The arrival of the train was after midnight, when it was very dark, and the sta[498]*498tion. was not lighted, nor was there any one in charge of the same. It is true that the testimony offered in behalf of the railroad company is to the effect that the train came to a full stop at Peter ton, and that it remained at the station between two and three minutes, giving ample time for passengers to leave it. Testimony was offered to show that Hughes had been sleeping and remained on the train until after it departed from Peterton, and that he jumped from the train after it had left the station and while it was in motion. An effort was also made to show that he was somewhat intoxicated at the time.
L passenger— time to alight-2-no°£iglnoe01T mined?*61"
[499]*499:i- for [498]*498Some of the circumstances developed in the case strongly tended to sustain the theory of the plaintiff, but the conflict in the testimony has been settled by the jury, and we must assume that upon all disputed questions the facts are as the testimony of the plaintiff below would show. Accepting that offered in her behalf as true, the company was clearly guilty of culpable negligence. It is well settled that it is negligence on the part of a railroad com- „ , . , „ pany lor those m charge of a passenger train “to induce a passenger to leave the train while in motion, and a gross disregard of the duty it owes to him not to stop the train entirely, and give the passenger ample time and opportunity to-alight.” (Filer v. Railroad Co., 49 N. Y. 51; Bucher v. Railroad Co., 98 id. 128 ; Beach, Contr. Neg. § 160 ; 2 Am. & Eng. Encyc. of Law, 761.) It is not con- ■ tributory negligence per se for a passenger leave a train which is in motion. Of course, a passenger must exercise ordinary care, and if he voluntarily places himself in a perilous position and incurs a danger so obvious that an ordinarily prudent man would not encounter [499]*499it, there can be no recovery. Whether' the act of Hughes in leaving the train while it was in motion constitutes contributory negligence barring a recovery depends upon whether the danger was so patent that a prudent man under the circumstances would not have made the attempt. We think it was clearly a question of fact for the jury to determine. According to the testimony of the plaintiff, the train was running slowly, and at such a diminished rate of speed the motion of the train may have been hardly perceptible. From the testimony it would appear that James O’Melia was unable to determine whether the train was actually in motion when he attempted to alight. The fact that there was no light at the station made it the more difficult to decide as to the motion of the train, and the danger of leaving it. Then he would naturally think that the train would be brought to a stop, and the conductor would not invite him to leave the car when it was unsafe to do so. Of course, the mere, fact that he acted upon the advice or command of the conductor would not justify him in attempting to alight from the train when it was obviously dangerous ; and the fault of the conductor would not relieve the passenger from the consequences of his own reckless acts.
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The opinion of the court was delivered by
Joi-iNSTON, J. :
The first contention of the railroad company is that, upon the pleadings, judgment should have been given in its favor. The basis of this claim is that contributory negligence was set up as a defense in the answer of the railroad company, and that as there was no reply or denial of the averment of contributory negligence it must be taken as true. The petition alleged that the deceased was in the exercise of care when he attempted to alight from the train upon the order of the conductor, and the answer of the company contained a general denial of all the aver-[496]*496ments of the petition. If any reply was necessary-to close the issue it appears to have been overlooked and waived by the parties and to have been regarded as unnecessary by the court. The parties evidently proceeded upon the theory that an issue had been fairly raised as to whether Hughes was in the exercise of due care when the fatality occurred. A great part of the testimony produced at the instance of the parties bore upon that question, and no objection was made by the railroad company that the pleadings were insufficient, nor that the absence of a reply entitled it to a judgment. At the commencement of the trial an objection was made to the admission of any testimony, but the ground of the objection was that the petition failed to state sufficient facts to constitute a cause of action ; and at the end of the testimony offered to sustain the allegations of the petition, a demurrer to the evidence was interposed, which was overruled. Neither of these objections called the attention of the court to the necessity or omission of a reply. In view of the conduct of the parties in the course of the trial, the objection that there was no reply comes too late, and cannot be heard for the first time in the supreme court.
The next contention of the railroad company is that the conduct of the deceased in attempting to alight from the train on a dark night when it was in motion was reckless negligence, although he may have been invited or commanded by the conductor to do so, and therefore the court erred in refusing the request of the defendant to instruct the jury to return a verdict in its favor. On the night of March 19, 1890, John Hughes, his boy, who was about 11 years old, James O’Melia, his father-in-law, who was about 68 years old, and Alex. O'Melia, his brotlier-in-]aw, about 26 years [497]*497of age, boarded a regular passenger-train of the railroad company at Scranton for the purpose of riding to Peter-ton, a station about 12 miles away. Hughes and the elder O’Melia took seats near together in the front end* of a coach, while the younger O’Melia and the boy found seats in the rear end of the same coach. Alex. O’Melia liad procured the tickets for the party, and they were taken up by the conductor shortly after the departure from Scranton. The testimony of the plaintiff below tended to show that before reaching Peterton the conductor told Alex. O’Melia that the train would not come to a full stop at Peterton but would only slow up for them to get off, when Alex, responded that the train ought to be stopped to enable the two older men who were sitting at the front end of the coach to get off, and in reply the conductor advised him to take care of himself and let the others take care of themselves. It tended to show that after the whistle had been sounded for the station, and as they approached the station of Peterton, Hughes and James O’Melia were told that this was their station, and to get up and get off, which they proceeded to do. Alex. O ’ Melia and the boy went out on the rear platform of the coach ; and when they arrived at the station and the train was running slowly, Alex, took the boy in his arms and jumped upon the platform. The conductor was on the platform of the next car, and inquired if all were off, when Alex, told him that they were not. Nevertheless, the conductor gave a signal, and the train c'ommenced to run faster. Alex, walked a few steps along the platform and found his father lying on his face and hands, and a little further along, and beyond the platform, the body of Hughes was found in a mangled condition. The arrival of the train was after midnight, when it was very dark, and the sta[498]*498tion. was not lighted, nor was there any one in charge of the same. It is true that the testimony offered in behalf of the railroad company is to the effect that the train came to a full stop at Peter ton, and that it remained at the station between two and three minutes, giving ample time for passengers to leave it. Testimony was offered to show that Hughes had been sleeping and remained on the train until after it departed from Peterton, and that he jumped from the train after it had left the station and while it was in motion. An effort was also made to show that he was somewhat intoxicated at the time.
L passenger— time to alight-2-no°£iglnoe01T mined?*61"
[499]*499:i- for [498]*498Some of the circumstances developed in the case strongly tended to sustain the theory of the plaintiff, but the conflict in the testimony has been settled by the jury, and we must assume that upon all disputed questions the facts are as the testimony of the plaintiff below would show. Accepting that offered in her behalf as true, the company was clearly guilty of culpable negligence. It is well settled that it is negligence on the part of a railroad com- „ , . , „ pany lor those m charge of a passenger train “to induce a passenger to leave the train while in motion, and a gross disregard of the duty it owes to him not to stop the train entirely, and give the passenger ample time and opportunity to-alight.” (Filer v. Railroad Co., 49 N. Y. 51; Bucher v. Railroad Co., 98 id. 128 ; Beach, Contr. Neg. § 160 ; 2 Am. & Eng. Encyc. of Law, 761.) It is not con- ■ tributory negligence per se for a passenger leave a train which is in motion. Of course, a passenger must exercise ordinary care, and if he voluntarily places himself in a perilous position and incurs a danger so obvious that an ordinarily prudent man would not encounter [499]*499it, there can be no recovery. Whether' the act of Hughes in leaving the train while it was in motion constitutes contributory negligence barring a recovery depends upon whether the danger was so patent that a prudent man under the circumstances would not have made the attempt. We think it was clearly a question of fact for the jury to determine. According to the testimony of the plaintiff, the train was running slowly, and at such a diminished rate of speed the motion of the train may have been hardly perceptible. From the testimony it would appear that James O’Melia was unable to determine whether the train was actually in motion when he attempted to alight. The fact that there was no light at the station made it the more difficult to decide as to the motion of the train, and the danger of leaving it. Then he would naturally think that the train would be brought to a stop, and the conductor would not invite him to leave the car when it was unsafe to do so. Of course, the mere, fact that he acted upon the advice or command of the conductor would not justify him in attempting to alight from the train when it was obviously dangerous ; and the fault of the conductor would not relieve the passenger from the consequences of his own reckless acts.
“ When, however, the passenger under the encouragement or instruction of the company’s servants makes the leap and suffers an injury therefrom, such an act on the part of the passenger is not generally held contributory negligence ; but when the passenger leaves the train voluntarily, even though at the suggestion of the conductor or other trainmen, while the train is in motion, it is a question for the jury whether he acted as a prudent man under the circumstances.” (Beach, Contr. Neg., § 148.)
[500]*500In the Filer Case, already cited, the following language is used
‘ ‘ That there was more hazard in leaving á car while in motion, although moving ever so slowly, than when it is at rest, is self-evident; but whether it is imprudent and careless to make the attempt depends upon the circumstances. And where a party by the wrongful act of another has been placed in circumstances calling for an election between leaving the cars or submitting to an inconvenience and a further wrong, it is a proper question for the jury whether it was a prudent and ordinarily careful act, or whether it was a rash and reckless exposure of the person to peril and hazard.” (See, also, Railroad Co. v. Crunk, 119 Ind. 542 ; Nichols v. Railway Co., 68 Iowa, 732 ; Carr v. Railway Co., 58 Am. & Eng. Rld. Cases, 239 ; Odom v. Railroad Co., 14 S. Rep. 734; Carruth v. Railroad Co., 14 id. 736 ; Cousins v. Railroad Co., 56 N. W. Rep. 14 ; 2 Am. & Eng. Eneyc. of Law, 762, and cases heretofore cited.)
If the conductor hustled Hughes and (¡he other passengers from the cars at Peterton, in the darkness, as the witnesses for the plaintiff below have stated, he was certainly guilty of gross negligence, when it was his duty to exercise the highest degree of reasonable care in safely setting them down at the station, and, under the authorities which have been cited, it was clearly a question for the jury to determine whether Hughes was in the exercise of ordinary care when he obeyed the order of the conductor and attempted to alight from the train.
Some objections are made to the answers given by the jury to the special questions submitted, but we find nothing substantial in them. In response to one question the’jury answered that the body of Hughes was found from 60 to 90 feet below the south end of the depot, while most of the testimony, fixed the point' [501]*501at about 120 feet from tlie depot. We do not deem the answer to be of much importance, but an examination of the testimony shows that the witnesses only estimated the distance, and did not undertake to give the exact measurement. We-think there was testimony to sustain the findings that were made, and we can see no such inconsistency in the findings as will justify a reversal.
4. Recovery, iarrecinot It is next insisted that the court erred in its instructions to the jury by requiring the application of the rule of comparative negligence, instructing in regard to gross negligence, and in other respects in the giving and refusing of instructions. The court in its charge stated the rules which govern where there is mutual or concurring negligence. It also recognized different degrees of negligence, and in doing so to some extent seemed to place the gross negligence of the company against the slight negligence of the deceased. Evidently the trial court had in mind some of the decisions of this court where it is held that a slight inattention to duty which is not the approxi- , . -, n llia^e cause oi the injury does not bar a recovery for injury resulting from the negligence of another. Although some of the language employed was objectionable, it is clear that the court did not indorse the doctrine of comparative negli---gence, nor give the jury to understand that, if Hughes was guilty of ordinary negligence contributing to his' death, there might be a recovery because the company was guilty of greater negligence. The passenger is required to exercise ordinary care, and his failure to exercise the highest or extraordinary care will not preclude a recovery for an injury caused by the gross or ordinary negligence of the railroad company. It is conceded that extraordinary care is not required of a [502]*502plaintiff who brings an action of negligence, and that slight negligence on his part will not defeat a recovery. In the case of Railway Co. v. Peavey, 29 Kas. 180, cited by plaintiff in error, it is said that it is settled in this state that a party may recover for injuries done to him or his property caused by the negligence of another, even if his negligence is slight.” While this view was adopted and degrees of negligence were recognized, at, the same time the court plainly instructed the jury and kept it before them throughout the charge that if Hughes fafled to exercise ordinary care and prudence in jumping from or leaving the train, there could be no recovery for his death. Talcing all the instructions together, we think the jury was not misled by the language of the court which is complained of, and that under the decisions it cannot be held that prejudicial error was committed in charging the jury as to the care required of the company and of the deceased. (Railway Co. v. Rollins, 5 Kas. 167 ; Sawyer v. Sauer, 10 id. 466 ; Railway Co. v. Pointer, 14 id. 37 ; Railway Co. v. Young, 19 id. 488 ; Railway Co. v. Richardson, 25 id. 391; Railway Co. v. Peavey, 29 id. 170 ; Railway Co. v. Henry, 36 id. 565.) The testimony which was introduced warranted the court in stating the rule of gross negligence to the jury, and after an examination ■ of the entire charge we are satisfied that the remaining objections to the rulings upon the instructions given and refused are not substantial, nor can error be predicated on them.
The final objection is that the damages allowed are excessive. According to the testimony, Hughes was 40 years of age, a man of good habits, with good health and a sound body. He was an industrious man, who had been engaged in mining, and who had earned wages as high as $5 per day; and the jury [503]*503found that in his usual vocation he was capable of earning $42 per month, and his earnings were computed for a period of 25 years. It is said that no mortality tables were introduced to show the probable duration of the life of the deceased. Such tables are admissible in evidence, to assist the jury in estimating the expectation of life, but they are not indispensable.
ufe — estimate^ how made. The jury may make their estimate from the age, health, habits and the physical . condition of the person at the time’ of his death. The court cannot interfere with the verdict of the jury upon the ground of excessive damages, unless the}' are so great as to appear to have been given under the influence of partiality or prejudice. Although the amount awarded was liberal, we cannot disturb the judgment on the ground of excessive damages.
The judgment of the district court will be affirmed.
All the Justices concurring.