dissenting.
Not being able to fully concur in all the conclusions reached by my learned associate in his able opinion in this case, I deem it my duty to express my views in this separate and dissenting opinion. I agree with all that is said in the first paragraph of his opinion. With reference to the quaere propounded in the second paragraph of his opinion I AVould say that in the case of Fox v. Graves, 46 *553Nebr., 812, this court has said: “Although the prayer for relief is a part of the petition, it is no portion of the statement of facts required to constitute a cause of action. The entire omission of any demand for judgment would not subject the petition to general demurrer.” It would follow from the rule thus announced that plaintiff’s omission of any demand for judgment in his petition would not and did not make the petition obnoxious to a general demurrer, and as the petition was not demurrable for having failed to state facts sufficient to constitute a cause of action, its defect was aided by answer and judgment.
I can not agree to the third syllabus of the opinion of my learned brother, in which he seeks to establish the rule that were “a passenger, who has been carried past his place of destination by a train which did not stop for him to alight, and who, without notice to, or knowledge of those in charge of the train, simply to avoid being carried to the next station, jumps from the steps of the car to the ground while the train is in rapid motion and is injured thereby, can not maintain an action against the railroad company to recover damages therefor.” *■ It does not seem to me that the reason for such a rule as this can be deduced from anything that was said by this court in the case of Chicago, B. & Q. R. Co. v. Landauer, 36 Nebr., 612, for in that case the train had stopped at the station a .reasonable length of time for passengers to alight, and had started in motion again after the station had been called and the passengers had all been given an opportunity to alight in safety before the accident had occurred. So that nothing determined in that case would warrant this court in declaring as a question of law, that a passenger who is being carried past his place of destination by a train which did not stop for him to alight, and is injured while leaving the train while it is in motion, can not maintain an action against the railroad company for damages for the injuries so sustained. For in the case just cited, the court referring to section 3, article 1, chapter 72, of Compiled Statutes, says: “It is not such contributory *554negligence for a passenger to jump from a moving train as Avill in every case prevent a recovery under the statute above cited; but AAdiere the circumstances are such as to render it obviously and necessarily perilous, and to shoAV a willful disregard of the danger incurred thereby, such act amounts to criminal negligence, as above defined.” In the case at bar plaintiffs testimony showed that the train on which he Avas a passenger for hire at the time the injury Avas received did not stop at the station of Edliolm for which he was bound, at all, but that when it reached the station it sloAved down so that he and Streeter, the only passengers who Avere on the train, thinking that the train was about to stop, Avent out on the platform to get off, and Streeter, Avho preceded the plaintiff, alighted from the train in safety. Plaintiff says he Avas deterred from immediately following Streeter in alighting from the train by reason of the fact that there Avere ties and rails along the side of the track when he had descended to the lowest step of the car platform, and on this account, according to his testimony, he did not alight from the train until it had gone about 150 feet east of the station platform; and he says that the train was not going at a rapid rate of speed when he started to alight from it, but that it gave a sudden jerk just as he was in the act of alighting and this jerk, according to his theory, caused the fall from Avhich his injuries were received. Plaintiff was corroborated in his testimony as to the fact that the train did not stop at the station at all by Streeter, the other passenger on the train, and three bystanders Avho were at or near the depot at the time the train came in. It is true that the testimony of defendant’s witnesses, the conductor, engineer and brakeman of the train, all tended to show that the train did stop at the station for about a minute before this accident occurred. But this disputed question of fact must have been found by the jury in favor of the plaintiff, for the trial court told the jury, in paragraph No. 8 of instructions' given on its own motion, that if they believed from the evidence “that the defendant’s train *555stopped at the station at Edholm and that plaintiff had a reasonable and sufficient time to alight from said train in safety while said train Avas at rest, then the defendant Avould not be liable in the action and you should find for the defendant.” The court also told the jury, in paragraph No. 10 of instructions given on its OAvn motion, that “If you find the defendant’s train stopped near the station of Edholm long enough to let the plaintiff get off the train and he did not get off but remained on until the train had gone some distance and then got off the train while it Avas running and on account of' so getting off received the injury complained of that then he was guilty of negligence such as under the circumstances prevents his recovery against the defendant.” In addition to these instructions, the trial court, after defining “criminal negligence” in the exact language used by this court in its definition of that term in Chicago, B. & Q. R. Co. v. Landauer, supra, told the jury in the ninth paragraph of instructions that if they found that the train did not stop at the station platform in Edholm, but that plaintiff Avas guilty of gross or criminal negligence in alighting Avhile the train Avas in motion, they Avould find for the defendant. It seems to me that these instructions fairly stated every defense that was offered by the railroad company under the pleadings and evidence in the case. No instructions Avere requested by plaintiff at the trial beloAv, and those which were requested by the railroad company and denied by the court each sought to ignore the liability entailed upon the company for injuries to its passengers under the proAdsions of section 3, article 1, chapter 72, of Compiled Statutes, and for that reason, as well as for the reason that the court on its own motion gave everything to which defendant Avas reasonably entitled under the issues, I do not think that any error Avas committed in the refusal of instructions.
I have thus far examined the liability of the railroad company under the facts and circumstances proved in this case solely in the light of the principles announced in *556Chicago, B. & Q. R. Co. v. Landauer, supra, not unaware of the fact that this decision was rendered by a divided court, and that in subsequent decisions of this court involving the liability attaching to a railroad company for injuries to its passengers, this case, and much of the dicta which it announced, have either been distinguished or entirely ignored. This is particularly noticeable in the subsequent case of Chicago, B. & Q. R. Co. v. Hyatt, 48 Nebr., 161, 167, in which it is held that: “It is not per se gross negligence for a passenger to alight from a moving train. Whether to do so constitutes such negligence as will defeat a recovery for injuries received is for the jury to determine, under proper instructions, from a consideration of all the evidence in the case.” The doctrine of this case is fully supported in principle by the more recent cases of Chicago, R. I. & P. R. Co. v. Zernecke, 59 Nebr., 689; Chicago, R. I. & P. R. Co. v. Young, 58 Nebr., 678, and Chicago, B. & Q. R. Co. v. Wolfe, 61 Nebr., 502. I am, therefore, of the opinion that the question as to whether or not the plaintiff was guilty of gross or criminal negligence in alighting from the train Avas, under the facts and circumstances proved in the case at bar, a question of fact, to be submitted under proper instructions to the jury.
A more serious question is suggested, in my judgment, by the complaint urged in the brief of defendant railroad company (plaintiff in error) that the damages awarded are excessiAre under the allegations of the petition and all the evidence submitted at the trial. After a description of the injury the petition alleges: “(4) By reason of which the plaintiff was sick and has been lame and Aveak in his back for a space of nine months, and unable to attend to his business, and is still in such condition, and has expended for medical attendance, before the commencement of this suit to Dr. Murphy of Octavia, Nebraska, the sum of $25, in all to his damage in the sum of $5,000.” It Avill be noticed that no permanent injury is alleged to have been occasioned by the fall xArhich the plaintiff received in alighting from the train. The proof offered by the, *557plaintiff tended to show at the most, that the plaintiff had sustained an injury to his spine by the fall, and that he had suffered considerable pain from the injury for four or five weeks after the accident, and that he had been totally or partially disabled from engaging in his avocation as a blacksmith for about a year after the injury. It also showed that he has been compelled to expend about $25 for medical attendance on account of the injury. While the testimony of the physician showed plaintiff to have received a severe and painful injury, it is very vague as to the probable lasting effect of the injury. It seems to me that under this testimony, and the allegations of the petition above set forth, the verdict of the jury awarding the plaintiff $3,500 damages was clearly excessive. I would therefore recommend that unless plaintiff enters a remittitur of $1,500 of the damages so assessed, within thirty days, that this cause be reversed and remanded, but that if such remittitur be entered, the judgment of the district court be affirmed.