The effect of the court's charge, considered as a whole, was to tell the jury to find for appellee only in the event they believed he was himself without fault, and that appellant's porter negligently pushed or jerked him from the steps of the car while it was moving, and that the act of the porter was the proximate cause of the injury to appellee. The jury were not authorized by the charge to predicate a finding of liability on appellant's part on its mere failure to stop the train long enough to enable appellee to safely alight therefrom. Therefore many of the objections urged to the charge and to the action of the court in refusing special charges requested need not be noticed in disposing of the appeal.
There was evidence which would have supported a finding that the train stopped at the station reasonably long enough to enable passengers to leave it. Appellant insists if it did stop long enough appellee, failing to leave it, was in the attitude of a trespasser, and that it owed him no duty except the duty to not willfully injure him. It therefore further insists that the court erred when he told the jury, in the third paragraph of his charge, that under those circumstances it owed to appellee the duty to use ordinary care to avoid injuring him. But we are of opinion if appellee was, technically, a trespasser, under the circumstances shown by his testimony, which it is evident from their verdict the jury believed, appellant's porter owed to him the duty to use care not to injure him in getting on the train. Railway Co. v. Harmon (Ky.) 64 S.W. 640; Railway Co. v. Ruxer (Ky.) 170 S.W. 655; Railway Co. v. Turner, 33 Tex. Civ. App. 604, 77 S.W. 255.
In the case last cited the court said:
"When a train is stopped, and does afford a reasonable opportunity for passengers to alight, then the employés of the carrier have the right to presume that all passengers desiring to do so have left the cars, and the duty of the carrier to those who have reached their destination and failed to alight is the use of ordinary care not to injure them."
And in the case first cited the court said:
"If it (the train) remained at the station long enough to permit the appellee to alight in safety, and she failed to do so, but was in the act of alighting in the presence of the conductor, and he started the train with that knowledge, it was per se negligence."
So far as the principle involved is concerned, we see no difference between the case last quoted from and this one. There the conductor was acting within the scope of his duty as such when he started the train. Here the porter was discharging a duty he owed to appellant to get aboard the train. If the conductor in that case, because he *Page 347 knew the position of the plaintiff on the train, owed her the duty to use care for her safety, notwithstanding she was a trespasser, we see no reason why the porter in this one, knowing, as he necessarily did in view the jury must have taken of the testimony, the position of appellee on the train, should not have been held to the use of care to avoid injury to him.
The matters presented by the refusal charges not disposed of by the conclusion reached, as indicated by what has been said, are believed to have been sufficiently covered by Instructions given to the Jury.
The verdict is attacked as without support in the evidence and as excessive. It is, if the testimony on the part of appellant alone should be considered. But the jury, of course, had a right to believe that on the part of appellee; and when it is looked to it cannot be said that the verdict as returned was without support as to either the finding of liability on the part of appellant or as to the amount of damages sustained by appellee.
The judgment is affirmed.