St. Louis, I. M. & S. R. R. v. Cantrell

37 Ark. 519

• Court: Supreme Court of Arkansas
• Decided: November 15, 1881
• Status: Published

Opinion

Harrison, J.

It was clearly the duty of those in charge of the defendant’s train, upon its arrival at Knobel, to stop the same opposite the platform, that the plaintiff might get off.

On the other hand, it may, as a general proposition, be said, that it is imprudent, and a want of proper care, to alight from a train while it is in motion ; but whether it was so in a particular case must depend upon the circumstances ¡under which the attempt was made. Crissey v. Passenger Railway Co., 75 Penn. St., 83. It would not be so if the "train was moving so slowly that no damage could be reasonably apprehended.

But though, in fact, it may be hazardous, a passenger who does so at the instance or direction of the conductor or ■other employee in the management of the train, on whose opinion or judgment in the matter he has the right to rely, and where the risk or danger was not apparent, cannot be chargeable with negligence. Filer v. The New York General R. R Co., 49 N. Y., 47; Lambeth v. North Car. R. R. Co., 66 N. C., 499; Whart. on Neg., sec. 371.

It would seem that the train, when the plaintiff attempted to jump upon the platform, was moving very slowly, as the •conductor testified that after he fell, it moved only fifteen or twenty feet before it stopped; and that the direct or immediate cause of the accident was that it had too far passed the platform when he leaped from the car for him to reach it.

There was no evidence that he knew that there was any risk or hazard in the attempt to get off, or of any want of •care in him, or of any negligence on his part which contributed to the accident; but it was proved that he was told by the conductor and brakesman “to hurry and get off,” the latter telling him also that they were in a hurry, and that he was urged by their impatience to make the attempt.

We can see no objection to any of the instructions the court gave the jury. Those in relation to the question of negligence are in strict accordance with the views above •expressed.

That the damages assessed by the jury were excessive, was not assigned as a ground of the motion for a new trial, and the appellant cannot be heard to complain of the fifth, or that in regard to the measure of the damages. It was, however, clearly correct. Peoria Bridge Association v. Loomis, 20 Ill., 235; Ransom v. New York and Erie R. R. Co., 15 N. Y., 415; Sedgw. on Damages, 699, note (2).

The court having already instructed the jury to the same •effect as asked by the defendant in his second instruction, it was, for that reason, very properly refused.

As the damages are not complained of as excessive, we have no occasion to consider the defendant’s objection to the remark of the court to the jury that it was important to the parties that they should return a verdict, and they should not let one or two hundred dollars prevent them; and we will merely say, we think it was not calculated to influence the jury to the defendant’s prejudice.

The affidavit of the juror should not, however, have been allowed to be filed, as the Statute expressly declares that:— “A juror cannot be examined to establish a ground for a new trial, except it be to establish, as a ground for a new trial, that the verdict was made by lot.” Sec. 1971 Gantt’» Digest.

The judgment is affirmed.