[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 316
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 317 It is not now claimed, as it was on the motion for a nonsuit, that the evidence failed to show negligence on the part of the defendants. Indeed, a grosser case of careless conduct is seldom presented to a court and jury. The train in which the plaintiff was a passenger had been run on the switch at Bergen, to await a train from the west which was due there. After waiting some fifteen minutes the train was irregularly started, the conductor getting on the engine. It was a dark and foggy night. The train had proceeded some forty rods when the western train was seen approaching at a rate of speed of about twenty-five miles to the hour An effort was made, by breaking up and reversing the engine, to get the up train back on the switch, but before this could be effected a collision of the trains occurred. The case then was, that on a dark and foggy night, trains of the defendants running in opposite directions, out of time, and one of them, *Page 318 at least, at an unusual rate of speed, near a station, run into each other, occasioning destruction of property and periling the lives of the passengers. No casualty can occur on a railroad which manifests grosser carelessness than a collision of trains which are running towards each other, out of time, and at a rate of speed which prevents their being stopped in season. And that was just this case.
But it is insisted that, although the defendants' negligence caused the injury complained of, the plaintiff should have been nonsuited, because his careless conduct contributed to produce it. The misconduct alluded to is, that, upon seeing the approaching train and men jumping from other cars to avoid the impending danger, he left his seat and rushed to the forward door of the car with the view of escaping himself, and had stepped one foot upon the platform at the instant of the collision. This, it is said, was such negligence as to have required the court to nonsuit the plaintiff. That is, as a matter of law, a passenger in a railroad car, who sees that he is placed in peril by the culpable conduct of the managers of the road, and judges correctly that a collision is inevitable, is guilty of a wrong, if he does not control the instinct of self-preservation, and sit still, and take the chances of safety. This is not the law. Seeing the danger in which he was placed, the plaintiff was justifiable in seeking to escape injury by leaving the car. His act was not the result of a rash apprehension of danger that did not exist. By the merest chance, the passengers in the same car with him, and who did not, like him, see the approaching collision, and who retained their seats, escaped uninjured. Although doubtless much excited, I do not think even that there was an error of judgment as to the course pursued to secure safety. A moment of time earlier would have enabled him to leap from the car, thus affording a probable chance of escape. But if he misjudged in this respect, the circumstances did not, as matter of law, charge him with negligence, or want of ordinary prudence. Seeing the approaching train, and that a collision, with its consequences, was inevitable, it was not the dictate of prudence to have deliberately kept his seat *Page 319 without an effort at self-preservation. There is no man, under the circumstances, retaining his senses and acting with ordinary prudence, that would not have exerted himself in some way to escape the great peril. It was not to invite, but to escape injury that he left his seat, and rushed to the door of the car; and an instant of time more would have enabled him to effect his purpose. That other passengers, who neither saw or had notice of the impending danger, remained in their seats, and, by chance, were uninjured, is no evidence that they judged rationally, or judged at all, as to what prudence required, or that the plaintiff misjudged, and acted rashly. At all events, it was for the jury, and not the court, to say whether the plaintiff's conduct, in view of the circumstances, was rash or imprudent, or amounted to negligence.
The court was requested to charge the jury, that as the plaintiff was injured on the platform of the car, in violation of the printed regulations of the company, he was not entitled to recover. This was properly refused. The statute exempts a railroad company from liability to a passenger who shall be injured while on the platform of a car, c., in violation of the printed regulations of the company posted up at the time in a conspicuous place inside of its passenger cars then in the train; provided the company at the time furnished room inside its passenger cars sufficient for the proper accommodation of the passengers. (Laws of 1850, ch. 140, § 46.) There was, in this case, a printed regulation, pursuant to this statute, posted in a conspicuous place inside the car, prohibiting passengers from standing or riding on the platform of any car. But neither the statute or the regulation has any application to a case like the present one. The plaintiff was not standing or riding on the platform at the time of the collision, but was hurrying as fast as he could to leave the car, in order to escape an imminent peril. The statute was intended to prevent the imprudent act of standing or riding on the platform, but not to absolve railroad companies from responsibility for every injury which might happen at that *Page 320 place, when a passenger is passing over it, while justifiably entering or leaving the cars.
Medical witnesses, who had attended upon and made frequent examinations of the plaintiff, even down to the day before the trial, were allowed, under objection, to give their opinions as to the permanency of the injury; and in the case of Dr. Thompson, upon his answering that he thought the injured leg would always be an imperfect limb, to state to what degree imperfect, including disability and pain. This was not error. The objection was to the incompetency of the testimony, and not to the incompetency of the witnesses to express their opinions on the subject of inquiry. It was not incompetent. The plaintiff was entitled to be compensated for the pain, and suffering, and disability resulting from the injury. In estimating the damages, the length of time an existing injury will continue must necessarily be considered; and there is no way of arriving at a conclusion on the subject, except by obtaining the facts, and the opinions of medical men. The question is peculiarly one of medical skill and experience.
I am of the opinion that the judgment of the Supreme Court should be affirmed.
PORTER and POTTER, JJ., did not sit; all the other judges concurring,
Judgment affirmed. *Page 321