ON REHEARING.
Battle, J.Appellee, in effect, says that his right to recover in this action depends upon the evidence adduced in the trial as to appellant’s employees stopping the car and then suddenly moving it forward ■ while he was alighting therefrom. If they did, he says, he was entitled to recover; otherwise he was not. If this be true, the fourth instruction, given at his request, should not have been given, and all the instructions to the jury should have been confined to that issue.
The fourth instruction asked by the appellee and given by the court assumes that the jury might find that he was guilty of contributory negligence. It does not indicate what is meant by negligence. What is meant? Obviously, alighting from a car while it was in motion. Witnesses testified that he did so, and we cannot see what negligent conduct is meant, unless it be this act. If this be true, what was the duty of the conductor? If the car was moving so slowly that he, by the exercise of reasonable foresight, could not anticipate that appellee would be injured by alighting, it was not his (conductor’s) duty to make an effort to avoid such consequences; and the appellant was not liable for his injuries. As to the movement of the car at this time, one witness testified that it had about stopped, and another that it was moving very slowly. This evidence tended to prove that the conductor had no reason' to apprehend that he would be injured by alighting at that time.
The fourth instruction, in effect, told the jury that, if the conductor knew of appellee’s negligent conduct, and could, by the exercise of proper care, have prevented the injury caused thereby, and did not do so, such contributory negligence of appellee would be no bar to his recovery of damages in this action, notwithstanding they might find from the evidence, as they could have done, that the conductor did not have and could not have had any reason to believe, apprehend or anticipate that an injury would probably be caused by the negligence. In this respect the instruction is defective, and was calculated to mislead the jury.
Appellee cites Little Rock & Fort Smith Railway Company v. Pankhurst, 36 Ark. 371, 377; Little Rock & Fort Smith Railway Company v. Cavenesse, 48 Ark. 106; St. Louis, Iron Mountain & Southern Railway Company v. Evans, 74 Ark. 407—in which the court said that it was the duty of the railroad company, “after becoming-aware of the injured party’s negligence, to use a proper degree of care to avoid the consequences of such negligence” — to support the fourth instruction given at his request. They were unlike this case. In those cases the undisputed facts showed that the negligence of the injured party exposed him to an injury which was inevitable, unless the railroad company used the proper degree of care to avoid it. The language of the court in them was used in reference to these facts, and should be construed and understood by applying it to that state of facts. Branch v. Mitchell, 24 Ark. 439.
The doctrine as to the duty of railroad companies to avoid the consequences of contributory negligence' and cases upon that subject are discussed at length in St. Louis & San Francisco Railway Company v. Townsend, 69 Ark. 380, and shown to be in accord with what we have said in this case.
Appellee’s counsel tell us that Craighead v. Brooklyn City Railroad Co., 123 N. Y. 391, is not applicable to this case, because the facts are different. Cases are not cited to decide questions of fact, but questions of law: The principle of law determined in that case, as we find it, is that a street railway company is not bound to use precaution to protect 'its passengers against accident and injuries caused by their own acts or omissions, which the exercise of reasonable foresight would not anticipate, and this principle we find applicable to this case as it is presented to us.
The motion for reconsideration is denied.
Hire, C. J., did not participate.