The opinion of the Court was delivered by
Fenner, J.
The following are the facts disclosed by the record:
On the 16th of October, 1886, plaintiff was a passenger on defendant’s train, having purchased a ticket from Bodeau Station to Doylene Station. The latter is a flag-station at which trains do not stop unless they have a passenger to put off or take on. If a signal is given from the station that there are passengers to get on, the engineer blows two whistles to signify intention to stop. If there are passengers to put off, the conductor notifies the engineer by pulling the bell-rope, and the engineer, on receiving such signal, blows two whistles to signify the [797]*797same intention. If there are no passengers to take on or put off, only one whistle is blown and the train does not stop, but simply slackens speed to a rate of eight or ten miles an hour in passing the station to enable the mails to be thrown on and off.
On this occasion, the traip had been compelled to come almost to a stop about two hundred yards from Doylene, on account of some oxen which were on the track. It then moved forward again and the conductor, knowing he had this passenger to put off, attempted to signal the engineer with the bell-rope, but, owing to some tangle or disarrangement, could not do so. Consequently the two whistles were not blown. The conductor, the engineer and the porter all agree on this point, and that is no contradicting statement.
The porter only calls out flag-stations when there are passengers toput off and the signal to stop is blown. The plaintiff testifies that the porter did pass through the car and call out Doylene Station, but this the porter positively denies, and, considering the uncontradicted testimony that no signal to stop was given, the fact is of little importance.
The consequence was that the train passed by the station only slacking its speed, as customary, but not stopping.
The plaintiff, having several times made this trip, and knowing his station, went out on the platform for the purpose of getting off. He went down on the steps of the car, and after passing a little beyond the station platform, seeing that the car did not stop, and, as he says, supposing that it was intended that he should get off and that he could do so with safety, he stepped off while the train was moving, and he says that as he was in the act of doing so, the train accelerated its motion, giving a sudden jerk which threw Mm and broke his ankle, occasioning the injuries for which his present action in damages is brought.
He says that just before he stepped off, some one called to him: “Is not this your station?” which acted in determining him to step off; but the evidence leaves no doubt that the person who asked the question was not any employe of the company.
The conductor says that, having failed to give the signal, he went through the train after passing the station, to find plaintiff, intending to back the train up to the station and put him off, but failed to find him and supposed he had gotten off'when the train had stopped on account of the oxen on the track.
Under these facts, the fault of the company, in not stopping its train, cannot be disputed. It was bound under its contract to stop and safely discharge its passenger.
[798]*798But did its negligent failure to discharge this duty justify the plaintiff in jumping off the moving train, or absolve Mm from the charge of contributory negligence which, under the settled jurisprudence of this court, is a bar to his recovery ?
We consider the law to be settled by the .overwhelming of authority, that while a railroad company is bound to stop its train at the station to which it has contracted to carry a passenger and to land Mm safely and conveniently, the fact that the "train is about to pass such a station without stopping does not justify the passenger in jumping off the moving train, unless expressly or impliedly invited to do so by the company.
A leading case on the subject, which we select from a multitude of authorities, not only on account of the great lawyer who delivered it, Judge Black, but also beca,use it has been expressly quoted and affirmed by this court, lays down the principle, in a state of facts strikingly similar to those before us, as follows: “The plaintiff below was a passenger in defendant’s cars from Philadelphia to Morgan’s corner. The train should have stopped at the latter place, but some defect in the bell-rope prevented the conductor from making the proper signal to the engineer, who therefore went past, though at a speed somewhat slackened on account of some switches there to be crossed. The plaintiff, seeing himself about to be carried on, jumped from the platform of the car and was seriously injured in the foot. * * Persons to whom the management of a railroad is intrusted are bound to exercise the strictest vigilance. They must carry the passengers to their respective places of destination and set them down safely, if human care and foresight can do it. * * But they are answerable only for the direct and immediate consequences of errors committed by themselves. They are not insurers against the perils to which a passenger may expose himself by his own rashness and folly. * * From these principles it follows very clearly that if a passenger is negligently carried beyond Ms station, where he had a right to be let off, he can recover .compensation for the inconvenience, the loss of time and the labor of travelling back, because these are the direct consequences of the wrong done to him. But if he is foolhardy enough to jump off without waiting for the train to stop, he does it at his own risk, because this is gross imprudence for which ho can blame nobody but himself.” Penn. R. R. Co. vs. Aspell, 23 Penn. St. 147.
This court long ago laid down the like doctrine in the following language : “If the daughter of plaintiff voluntarily jumped from the cars while, in motion, even though it was the constant habit of the company [799]*799to stop at that place, the leap not being made to avoid an imminent impending peril produced by the misconduct of defendants, but to avoid being carried beyond her place of destination, she was herself guilty of such imprudence as relieves the company from the consequences of the want of caution on the part of their servants; for in such a case, the accident may be attributed to the fault of both parties, which would destroy plaintiff’s right to recover.” And then the court quotes, with approval, the above decision of the Pennsylvania court. Dumont vs. N. O. & C. R. R. Co., 9 Ann. 441.
In a very recent case we referred to this principle as an evident one, saying:
“Now, supposing that any passenger on a regular train should labor under a similar mistake in believing, for instance, that the train was passing by the station to which he was destined, and fearing that he might be carried beyond the same, should jump out as the train was pulling out of the station, and be injured by falling, could the company be held liable for injuries thus received 9 Evidently not.”
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The opinion of the Court was delivered by
Fenner, J.
The following are the facts disclosed by the record:
On the 16th of October, 1886, plaintiff was a passenger on defendant’s train, having purchased a ticket from Bodeau Station to Doylene Station. The latter is a flag-station at which trains do not stop unless they have a passenger to put off or take on. If a signal is given from the station that there are passengers to get on, the engineer blows two whistles to signify intention to stop. If there are passengers to put off, the conductor notifies the engineer by pulling the bell-rope, and the engineer, on receiving such signal, blows two whistles to signify the [797]*797same intention. If there are no passengers to take on or put off, only one whistle is blown and the train does not stop, but simply slackens speed to a rate of eight or ten miles an hour in passing the station to enable the mails to be thrown on and off.
On this occasion, the traip had been compelled to come almost to a stop about two hundred yards from Doylene, on account of some oxen which were on the track. It then moved forward again and the conductor, knowing he had this passenger to put off, attempted to signal the engineer with the bell-rope, but, owing to some tangle or disarrangement, could not do so. Consequently the two whistles were not blown. The conductor, the engineer and the porter all agree on this point, and that is no contradicting statement.
The porter only calls out flag-stations when there are passengers toput off and the signal to stop is blown. The plaintiff testifies that the porter did pass through the car and call out Doylene Station, but this the porter positively denies, and, considering the uncontradicted testimony that no signal to stop was given, the fact is of little importance.
The consequence was that the train passed by the station only slacking its speed, as customary, but not stopping.
The plaintiff, having several times made this trip, and knowing his station, went out on the platform for the purpose of getting off. He went down on the steps of the car, and after passing a little beyond the station platform, seeing that the car did not stop, and, as he says, supposing that it was intended that he should get off and that he could do so with safety, he stepped off while the train was moving, and he says that as he was in the act of doing so, the train accelerated its motion, giving a sudden jerk which threw Mm and broke his ankle, occasioning the injuries for which his present action in damages is brought.
He says that just before he stepped off, some one called to him: “Is not this your station?” which acted in determining him to step off; but the evidence leaves no doubt that the person who asked the question was not any employe of the company.
The conductor says that, having failed to give the signal, he went through the train after passing the station, to find plaintiff, intending to back the train up to the station and put him off, but failed to find him and supposed he had gotten off'when the train had stopped on account of the oxen on the track.
Under these facts, the fault of the company, in not stopping its train, cannot be disputed. It was bound under its contract to stop and safely discharge its passenger.
[798]*798But did its negligent failure to discharge this duty justify the plaintiff in jumping off the moving train, or absolve Mm from the charge of contributory negligence which, under the settled jurisprudence of this court, is a bar to his recovery ?
We consider the law to be settled by the .overwhelming of authority, that while a railroad company is bound to stop its train at the station to which it has contracted to carry a passenger and to land Mm safely and conveniently, the fact that the "train is about to pass such a station without stopping does not justify the passenger in jumping off the moving train, unless expressly or impliedly invited to do so by the company.
A leading case on the subject, which we select from a multitude of authorities, not only on account of the great lawyer who delivered it, Judge Black, but also beca,use it has been expressly quoted and affirmed by this court, lays down the principle, in a state of facts strikingly similar to those before us, as follows: “The plaintiff below was a passenger in defendant’s cars from Philadelphia to Morgan’s corner. The train should have stopped at the latter place, but some defect in the bell-rope prevented the conductor from making the proper signal to the engineer, who therefore went past, though at a speed somewhat slackened on account of some switches there to be crossed. The plaintiff, seeing himself about to be carried on, jumped from the platform of the car and was seriously injured in the foot. * * Persons to whom the management of a railroad is intrusted are bound to exercise the strictest vigilance. They must carry the passengers to their respective places of destination and set them down safely, if human care and foresight can do it. * * But they are answerable only for the direct and immediate consequences of errors committed by themselves. They are not insurers against the perils to which a passenger may expose himself by his own rashness and folly. * * From these principles it follows very clearly that if a passenger is negligently carried beyond Ms station, where he had a right to be let off, he can recover .compensation for the inconvenience, the loss of time and the labor of travelling back, because these are the direct consequences of the wrong done to him. But if he is foolhardy enough to jump off without waiting for the train to stop, he does it at his own risk, because this is gross imprudence for which ho can blame nobody but himself.” Penn. R. R. Co. vs. Aspell, 23 Penn. St. 147.
This court long ago laid down the like doctrine in the following language : “If the daughter of plaintiff voluntarily jumped from the cars while, in motion, even though it was the constant habit of the company [799]*799to stop at that place, the leap not being made to avoid an imminent impending peril produced by the misconduct of defendants, but to avoid being carried beyond her place of destination, she was herself guilty of such imprudence as relieves the company from the consequences of the want of caution on the part of their servants; for in such a case, the accident may be attributed to the fault of both parties, which would destroy plaintiff’s right to recover.” And then the court quotes, with approval, the above decision of the Pennsylvania court. Dumont vs. N. O. & C. R. R. Co., 9 Ann. 441.
In a very recent case we referred to this principle as an evident one, saying:
“Now, supposing that any passenger on a regular train should labor under a similar mistake in believing, for instance, that the train was passing by the station to which he was destined, and fearing that he might be carried beyond the same, should jump out as the train was pulling out of the station, and be injured by falling, could the company be held liable for injuries thus received 9 Evidently not.”
In the multitude of adjudications and judicial expressions on this subject by numerous courts, there have naturally arisen varieties and conflicts of opinions, and decisions, hostile or apparently hostile to each other, are quoted on either side j but the weight of authority undoubtedly sustains the views above expressed, and, at all events, what more nearly concerns us, they have been adopted in the jurisprudence of Louisiana.
The question is, then, whether the plaintiff, in jumping off the moving train, acted upon the express or implied invitation of the company.
The evidence conclusively negatives any express invitation on the part of any employee of the company. It is equally clear that the officers in charge of the train never intended or expected that plaintiff should get off, and certainly did not slack up for the purpose of letting him get off. They acted precisely as they would have done had there been no passengers to take on or let off; for the engineer had no signal to that effect; therefore, did not know that there was a passenger to put off; and only slackened the speed, as was his duty on all occasions, sinqily to allow the exchange of mails. Is it possible to construe this as implying an invitation? If so, such an invitation is given to every one who wants to get off the train, whenever it passes such a station.
The testimony is conflicting as to the rate of speed at which the train passed the station. Nothing can be more uncertain than such estimates, especially when made by unskilled observers. -The natural and prob[800]*800able conclusion from the circumstances is that the train only made the usual slacking of speed for exchanging the mails. There was no reason why the engineer' should have acted otherwise. Plaintiff thinks he would have landed safely but for the acceleration of speed which took place as he was in, the act of jumping. But this acceleration only took plack after the train had passed the platform and after the mails had been exchanged, which was the usual and natural, course.
If plaintiff chose to infer an invitation to jump off from these customary acts of the company, it was a rash conclusion. One of his own witnesses testifies that he never, at any other time, saw a person jump from a train moving as fast as that one was, although he says it was moving slowly.
That plaintiff’s action was imprudent, is shown, by the result, and, as we think, by. all the circumstances. Ilis own evidence shows that he hesitated about attempting the jump, and was only determined by the question of a third person and the thought that, otherwise, he would be carried beyond his station. His act was purely voluntary, uninfluenced by any invitation expressed or intended by the employees of the company and excused by no impending danger or, necessity of any kind except his mere unwillingness to be carried beyond his station. It was imprudent and dangerous, and his action for the resulting injury is clearly barred by his own contributory fault.
It is, therefore, ordered and decreed that, verdict and judgment appealed from be annulled and set aside, and that there be judgment in favor of defendant rejecting the demand at plaintiff’s cost in both courts.
Watkins, J. dissents and roserves the right to file his reasons.