Opinion of the Court by
Eeversing’.
This is an action by appellee for damag’es alleged1 to have been sustained by him in being thrown from the platform of one of appellant’s trains, because of the negligent operation thereof.
In August, 1914, appellee, a young man then about twenty years of age, very early one morning boarded appellant’s train at Lancaster, having first purchased a round-trip ticket to Cincinnati. He and his companion, Luce, went to Cincinnati on the train and after spending the clay there and in Covington late that afternoon boarded a train for the return trip. The train reached Lancaster very late in the night, and at the next station north of Lancaster some of the trainmen announced that the next stop would be Lancaster, and as the train' approached that place appellee awakened his companion, who had gone to sleep, and prepared to alight. No announcement was made by any of the train crew of the approach to the Lancaster station, but appellee knowing from the country and from his knowledge of the locality that they were approaching the station, and the speed of the train having lessened, as he thought with the purpose of stopping at the station, he went upon the platform to alight from the train; the train instead of stopping at the station when it reached there sudden
The petition contains only a general charge of negligence in the management and operation of the train.
The defendant answered in four paragraphs, the first of which is only a traverse of the petition; the second was a plea of contributory negligence, alleging affirmatively that the plaintiff had negligently gone upon the platform while the train was in rapid motion and while it was in such motion had negligently and voluntarily jumped from the platform to the ground; the third was a general plea of contributory negligence and the fourth paragraph was a plea of assumed risk.
The court upon motion of the plaintiff struck out the second and fourth paragraphs of the answer.
On the trial the jury returned a verdict for the plaintiff in the sum of $5,000, upon which judgment was entered and from which this appeal is prosecuted.
The evidence of the plaintiff as to the manner of the accident consisted chiefly of the statements of the plaintiff himself although in some respects it was corroborated by other witnesses; while the evidence for the defendant by two or three witnesses was to the effect that the plaintiff voluntarily jumped from and did not fall from the moving 'train.
A reversal is sought, (1) because of the Court’s refusal to give a peremptory instruction, (2) because of its action in striking out the second and fourth paragraphs of its answer, and (3) because of error in the instructions. .
The appellant thinks it was entitled to a peremptory instruction because (1) even if the plaintiff fell from the train defendant was guilty of no negligence which was the proximate cause of the plaintiff’s injury, and (2) because the plaintiff was guilty, as a matter of law, of contributory negligence.
The first proposition is based upon the idea that the. only negligence shown was the failure to stop1 the train at the station, and if this were true appellant’s position
The second ground urged for a peremptory must likewise be denied; it has frequently been held by this Court that to authorize the Court to hold as a matter of law that there was negligence, the inference to- be drawn from the evidence must be certain and incontrovertible, otherwise the case must be submitted to the jury. Dalls v. I. C. Ry. Co., 144 Ky. 737. And it has likewise been held that where one leaves a railroad coach and goes upon the platform with the purpose of alighting from the train as it approaches a station that it must be left to the jury to determine under proper instructions whether from all the facts in evidence he was or not guilty of contributory negligence. L. & N. R. R. Co. v. Head, 22 Rep. 863; L. H. & St. L. Ry. Co. v. Stillwell, 142 Ky. 330. The jury in the case at bar might well have thought that the plaintiff in going upon the platform of the car as it approached the station at Lancaster after it lessened its speed, as testified to by plaintiff’s witnesses, acted with ordinary care for his own safety; or it might have thought from the evidence that the train had not slackened its speed and was going at a high rate of speed when he went upon the platform and that he had been guilty of contributory negligence. Under the evidence in this case the question was for the jury
Manifestly one plea of contributory negligence was sufficient in the answer, and the allegations in the second paragraph of the answer specifying the contributory negligence of which the plaintiff was guilty, as alleged, added nothing’ to the general plea of contributory negligence contained in the third paragraph, as under the latter the defendant was permitted to and did introduce all the evidence on that issue.
The defense of assumed risk had no place in this case; ordinarily that defense pre-supposes the existence of the relation of master and servant and as no such relation existed between the plaintiff and defendant the fourth paragraph was properly stricken from the' answer.
The trial court in instruction No. 1 authorized a recovery for the plaintiff if the train failed to stop at Lancaster and passed by the station at a high rate of speed whereby the plaintiff was thrown from the train, 'but did not submit to the jury the sudden accelerated speed of the train after the plaintiff had gone upon the platform which plainly caused the jerk or wrench which threw the plaintiff from the train, according to the plaintiff’s theory, as a ground for recovery. Neither the mere failure of the train to stop at the station, nor the high rate of speed at which it may have passed the station, singly or combined, was the proximate cause of his being thrown from the platform. The failure of the' train to stop at the station was admittedly a breach of duty, and the passing by the station at a high rate of speed it necessarily follows was also a breach of duty, but neither of these acts of negligence was directly or even proximately the cause of the plaintiff being thrown from the platform. The sole and only cause, direct or proximate, was the sudden accelerated speed of the train at or near the station at a time and place, according to the plaintiff’s theory, when he had a right to expect the train to slacken its speed and stop. If the plaintiff in the exercise of ordinary care for his own safety under all the facts and circumstances in evidence went upon the platform with the reasonable expectation and belief that the train which had already slowed down would continue to get slower and finally stop at the station where it was the duty of the trainmen to stop it, and after
No matter how negligent the failure to stop at the station may have been the plaintiff could not recover unless that was the cause of the injury. In our view the real question in the case was not submitted in the instructions.
On another trial the court in lieu of instruction No. 1 will give the following instruction:
“You are instructed that it was the duty of the employes in charge of the train in question to stop the same at the Lancaster station; and if you believe that as the train approached the Lancaster station it slackened its speed and the plaintiff thereafter, while exercising ordinary care for his own safety,' went upon the platform of the car with the purpose of alighting therefrom, and that after he reached the platform and just before the train reached the Lancaster station, without warning or notice to the plaintiff, the train was caused to suddenly increase its speed and that because of such sudden increase, if any, the plaintiff was thrown from the train, you will find for the plaintiff; unless you so believe you will find for the defendant. ’ ’
The instructions in other respects are unobjectionable.
Because of our opinion that the giving of instruction No. 1 was reversible error, as indicated above, we have not deemed it necessary to advert to appellant’s complaint of the Court’s action in refusing to require the plaintiff to submit to a physical examination by defendant’s physician during the trial, or its complaint that the amount of the verdict was excessive.
Because of the error in the instruction referred to the judgment is reversed with directions to grant appellant a new trial and for further proceedings consistent herewith.