dissenting.
There is in the evidence room for a considerable difference of opinion as to the speed of the train at the time *551in question. And it is not certain whether it was the rate of regular motion, an element of danger which the plaintiff was bound to consider, or a sudden jerk, which he did not have reason to anticipate, that caused the accident. But in any view of the case, I think the trial court did not err in submitting the question of contributory negligence to the jury. There was, of course, some risk in getting off the train while in motion, but the act was not so obviously rash and foolhardy as to amount necessarily to criminal negligence. Criminal negligence is a convenient phrase to indicate that the degree of care required of the passenger is small. As defined by this court it means such “gross negligence as amounts to a reckless disregard of one’s own safety, and willful indifference to the consequences liable to follow.” In my judgment, it was for the jury to determine from its knowledge of men and of the motives that influence and control human conduct whether the act of the plaintiff was, under all the circumstances, within the definition quoted. To say that a strong, active and experienced man, who, to avoid being carried beyond his destination, gets off a slowly moving train, or a train moving with small velocity, is in every case foolishly heedless of consequences, and willfully indifferent to his personal safety, is to assert what every man accustomed to travel knows from his own experience and observation to be untrue. I readily concede that from the facts which the evidence in the record tends to prove criminal negligence might be reasonably inferred, but I deny that the inference is a necessary and inevitable one. If the plaintiff had not attempted to alight, and had gone on to the next station, I think his conduct would be generally regarded as unusual; it would probably stamp him in the opinion of most people as over cautious and somewhat deficient in ordinary courage. It would perhaps be better that passengers should submit to the inconvenience of being carried beyond their destination, rather than take the chance of being injured by alighting from a moving train; but we are dealing now with con*552(litions, and not with theories. It is a question of what men actually do in the situation in which the plaintiff was placed by the fault of the company’s servants, not what the theorists think they ought to do. It seems to me perfectly plain that the criterion by which the plaintiff’s conduct has been tried in this court is a false criterion. ’The standard man set up by the majority is, in my opinion, a mythical character; he is a man we do not meet in real life; he is wholly a creation of the judicial mind, and bas no objective existence anywhere. I think it is doubtful whether the evidence in this case shows want of ordinary care, and I am very sure that it does not conclusively show on the part of the plaintiff that extreme degree of indifference to his OAvn safety that constitutes criminal negligence. It was the business of the jury to fix the standard of commensurate care in the circumstances disclosed by the evidence, and to test the plaintiff’s conduct by that standard. If in the discharge of this duty they did not reason irrationally and contrary to common sense, their decision should be final. Chicago, R. I. & P. R. Co. v. Landauer, 36 Nebr., 642. Upon questions of the kind here considered the opinion of a judge, however eminent, is, as every one knows, seldom, if ever, better than that of the average juror. And for this reason, it seems to me that the court has gone to an extraordinary, if not to an unprecedented, length in setting the verdict aside.
A more elaborate and perspicuous presentation of the views here expressed will be found in the following opinion.