Dissenting Opinion.
Watkins, J.Plaintiff sued the railroad company for $10,000 damages for injuries he received in alighting from one of its trains while in motion, on which he was a passenger, it having passed the station to which he was ticketed, without making a, fall stop, only slowing up to permit an exchange of mails.
There was a verdict of a jury in his favor, which this court has set aside, and the substance of the majority opinion is: That the act of the xflaintiff was voluntary, and without invitation, on the part of the officers and agents of the railroad comxiany, and — while the conxpany was, primarily, guilty of negligence in failing to carry out its contract of safe carriage — the plaintiff was guilty of contributive negligence, which relieves the comxiany.
The opinion puts the proposition thus: “ The question is, then, *801whether the plaintiff in jumping off the moving train, acted upon the express or implied invitation of the company-;” and, answering that question, the opinion says, “the evidence conclusively negatives any express invitation, on the part of any employes of the company. It is equally clear that the officers in charge of the train never intended, or expected that he should get off.”
It will be observed that the opinion does not state that the plaintiff was not impliedly in vited to leave the train; but that there was no express invitation, on the pari of any employe of the company, and, that the officers in charge, never intended, or expected him to leave.
This dieta is the sole foundation of the opinion, and the legal proposition announced rests exclusively upon Damont vs. Railroad Company, 9 Ann. 441; Aspell vs. Railroad Company, 23 Penn. St.; and Reary vs. Railroad Company, 40 Ann. 32.
Let us see what is their purport and what are the principles they announce, and whether they are a proper foundation for the opinion.
In the Damont case none of the facts are stated. The only question discussed was the correctness of the charge of the judge a quo to the jury, and the case was remanded for a new trial.
The only cases cited therein, as authority, were Lesseps vs. Railroad Company, 17 La. 362, and Fleytas vs. Railroad Company, 18 La. 339. Those two cases involved claims for damages sustained by the owners of slaves who had been killed, one in attempting to cross a railroad track, and the other while lying on the track, either drunk or asleep. The mere citation of those cases as authority for the decision of that case, shows how imperfectly understood were the questions involved, in 1854, when that opinion was rendered; for, of course, there being between the owners of the slaves and the railroad companies no contractual relations whatever, the former wore, primarily, guilty of gross negligence, and the latter without fault.
But the opinion quotes with approval the paragraph from Aspell vs. Railroad company, which was quoted in.the Damont case; but in that extract no part of the facts of that case is recited.
They are brought forward in Wood’s Railway Law, at pages 1130 and 1131, and we quote them, to show how very inapplicable to this case they are. They are as follows, viz:
“ Whilst the train was in motion, the plaintiff leaped from the car, though warned by the conductor and brakeman not to do so, and who informed him that the train would be stopped and backed to the station. * * * If he had heeded them, he would have been safely set down at the place ho desired to stoi) at, in less than a minute and a half. In*802stead of this he took a leap which promised nothing but death; for it was made in the darkness of midnight, against a wood pile close to the track, and from a car going at the full rate of ten miles an hour.''’
On this state of facts both the Aspell and Damont cases depend. On such a state of facts, of course, the plaintiffs were held to have been guilty of gross negligence, and the railroad companies without fault.
But why should those decisions be cited in this case as sustaining the doctrine of contributory negligence? I confess I cannot understand; for I respectfully submit that this record presents no such case.
Nor is the case of Reary vs. Railroad Company, at all applicable, because it was one of a little girl who received injuries in jumping from a train of cars while in motion. But she was not a passenger. The train was in the depot-yard, being uncoupled at the time, and the conductor had gone home. The paragraph quoted from that case in the opinion was hypothetically stated, merely for the purpose of an illustration, and has no weight, as a part of that decision.
Without antagonizing the opinion on its statement of facts, I propose to make an independent one.
As a witness, the plaintiff says that when within two hundred yards of the station of his departure, there was a yoke of oxen on the track, and the speed of the train was slackened until they were frightened off. Afterwards its speed was increased a little, the whistle blown, and it was reduced, and slowly moved by the depot platform while the mail was being exchanged. When the train passed the depot he thought it was running slow enough for a man to get off without danger. The only thing that prevented Mm getting off safely was that the train gave a jerk forward as he got off. The train was moving all the time, but very slowly. The place where he attempted to alight wasabetter place to get off than that where persons usually get off. The ground was smoother. The train was running at less than one-half its usual speed. When he was passing the place where the ties, etc., were lying, he thought it was not a safe ptlacé to get off. As he hurriedly made up his mind, the train passed an open place, and he got off there, because he thought it was bettor ground, and he could get off there without getting hurt.
Using his own language he says: “ Just at the moment that I got off, the train made a jerk. I was in the act of leaving the steps when the jerk came. I had let go the railing, and had started to step in the direction of the way the train was going, and one foot had left the step, and the other (was) still on the steps and (in the act of) leaving, when the jerk came.” This occurrence happened at 10 o’clock a. m.
*803Another witness for plaintiff states that he was present and saw the train approach the station. Using his own words he says: “ I think the train checked up a little, west of the platform, but near it. I do not think the train stopped entirely at tiro station, this trip. * * I think the train came nearer stopping that clay, than it usually does, to put off the mail. * * About the time the locomotive got opposite the platform the train was moving very slow.”
Another of plaintiff’s witness states, using his own language:
“ I was at Doylene Station the day that Mr. Walker got his leg broke. I was in about fifteen steps of him when it happened. I saw Mm when he went to step off the train, and it appeared to me that, as he did so, the train got faster, and jerked his feet from under him. Just before, and at the time he attempted to get off, the train was going slow, and just as he went to step, it appeared to me that it jerked his feet from under him. I do not know that it was going any slower than when thep checked up for the mail. I have never seen any one get off there when the train was running as fast as it was then, except Mr. Walker. I have frequently got on the train * * when it wees going as fast as that.”
On the part of the defendant there is not a syllable of positive testimony in opposition to these emphatic statements.
The conductor was sworn, and simply stated that “ the average rate of running is about twenty-four and one-half miles an hour, on the road from Monroe to Shreveport. This was true in October, 1886. * * The average rate of speed, when passing flag-stations, when the train does not stop, is between eight and twelve miles an hour, for the exchange of mats, as above stated.” This witness does not profess to have any knowledge of the occurrence, because he says: , “ I learned the day afterwards, that Mr. Walker jumped off the train and had broken his leg.”
He subsequently volunteered the statement that: “ I judge that the train was running at about ten miles an hour on that day when it passed Doylene, because it usually passes at that speed when only delivering the mail.”
The engineer testified that he was on this road, running a passenger engine and train in October, 1886, but that he had “ no recollection of the, accident that resulted in the injury of Mr. Walker.” Said he did “not recollect who wees engineer on the passenger train going out on the 16th of October, 1886.”
The defendant’s third witness was the porter, who states, using his own words : “ I recollect the time that Mr. Walker wees send to have been *804hurt, at or near Doylene Station.” He says further: “I remember that on that day no signal was given to stop at Doylene, and I did not leave my seat.”
Consequently, it is established by the concurring statements of defendant’s three witnesses — all of them trainmen — that they knew nothing of the occurrence, and could testify to nothing adverse to the testimony of plaintiff’s witnesses. Of course the mere theoretical conjecture of the engineer as to the speed of the train amounts to nothing at cill.
The recital of the foregoing facts is sufficient to take this case out of the principle announced in Aspell vs. Railroad Company. They plainly show the defendant in fault, and without excuse.
Now I will consider whether they- show the plaintiff guilty of contributory negligence to such a degree as to preclude his right to recover.
A review of authorities will first be necessary.
It was decided by the Supreme Court of Tennessee, in 1877, that the act of a passenger in alighting from a train while in slow motion, who sustained injuries in consequence, has been, in the courts of several of the States, treated as negligence per se, and no damages can be recovered; “but,” say the court, “this is contrary to the current of judicial opinion, in this country, at least. The true rule deducible therefrom is, stated in Wood’s Railway Law, Yol. 2, pp. 1130 et seq: ‘In all cases the question is one of fact, whether in view of particular circumstances, the passenger was guilty of negligence in attempting to leave the train while it was in motion. In this, as in reference to all other matters when the safety of the passenger is concerned, the company owes a duty to the passenger to act with proper caution and care; and if the motion of the train is not entirely stopped, amd the passenger is expressly or impliedly invited to leave the train while moving at a slow rate of speed, he has the right to presume that it is safe for him to do so, etc. * ■ * If the train is moving slowly, and there is no obvious danger in getting off, it cannot be said to be negligence per se, to make the attempt, especially if the passenger is directed to do so * * and it would be error to instruct'the jury that such attempt per se constituted contributory negligence, Id. 1129.
“As a rule, it may be said that when a passenger, by the wrongful aet of the company, i$ compelled to choose between leaving the cars while they are moving slowly, or submitting to the inconvenience of being carried by the station when he desires to stop, the company is liable for the consequences of the choice, provided it is not exercised negligently or unreasonably, Id. 1131, 1132. (Citing Thompson on Carriers, pp.227, 267; Plopper vs. Railroad Company, 13 Hunn. (N. Y.) 625; Keating vs. Railroad Company, 49 N. Y. *805379; and Faber vs. Railroad Company, 70 N. Y. 489, Sections 1131, 1132.) The earlier cases,” says the Tennessee court, “ established the rule that leaving the train (whilst) in motion, was such negligence as defeated the right of recovery, unless done to avoid danger of remaining on board, and this is still stated as the general rule, in many authorities. 2 Wood’s Railway Law, p. 1126; Thompson on Carriers, p. 267. But the rule we have laid down.is the modern one, formulated from the many exceptions, and this modification has been recognized in this court. Railroad Company vs. Conner, 15 Leca, 258;” Railroad Company vs. Stacker, 86 Pickle 345.
Thus it is stated, on the highest authority, that, when a passenger “ is impliedly invited to leave the train ” — not by the officers of the train, but by surroionding circumstances — “ while moving at a slow rate of speed, he has a right to presume that it is safe to do so.” But the opinion states, that such an act was but “rash” and “imprudent,” because it “was purely voluntary, uninfluenced by any invitation, expressed or intended by the employes of the company.”
It was decided by the Supreme Court of Georgia, in a recent case, that “the railroad was bound to put a passenger off; to stop its train for this purpose. This it failed to do, and it was not want of ordinary care in the passenger to use the only means to get off, the course of the defendant permitted.” Railroad Company vs. McCurdy, 45 Ga. 289; Citing, Filer vs. Railroad Company, 49 N. Y. 47; Lloyd vs. Railroad Company, 53 Mo. 509; Railroad Company vs. Able, 59 Ill. 131.
The Georgia court then states what is the proper limitation of that rule thus: “But, generally, no recovery can be had if the cars are under such motion as to render it obviously dangerous for a person to attempt to leave them.” (Citing 2 Wood’s Railway Law, p. 1136; Railroad Co. vs. Randolph, 53 Ills. 510; Railroad Co. vs. Hazard, 26 Ills. 373.)
“When the danger is apparent it must not be braved simply because the company is bound to stop the train, or because it is very important that the passenger should stop at that particular place.” 45 Ga. 289, Ante.
But the rule is stated concisely in Wood, to be: “But, in all cases, the question of liability must necessarily be determined by the facts and circumstances of each case — -whether the train was in rapid motion * * and whether the real danger was obvious.” 2 Wood’s Railway Law, pp. 1137, 1148.
“But when a railway company fails to bring its train to a full stop at a station it is liable in damages for injuries sustained by a passenger, in *806attempting to get off, if, under all the circumstances, it was prudent for him to make the attempt.” J hid. pp. 1148, 1149; Price vs. Railroad Co., 72 Mo. 414; Railroad Co. vs. Letcher, 69 Ala. 106; Railroad Co. vs. Houston, 95 U. S. 297; Railroad Co. vs. Copeland, 61 Ala. 376.
[The italics in preceding quotation are those of the writer.]
Abbott states the rule thus :
“Alighting from a car at an unsuitable place is not eontributive negligence, if the train is not stopped at a suitable one, and if there is not such apparent danger as would deter a person of ordinary prudence.” Abbott’s Law of Corporations, vol. 2, p. 598.
Beach announces the ride thus:
“As in the case of boarding a railway train in motion, so it is held not contributory negligence per se for a passenger to jump off a train whilst it is moving. Railroad Co. vs. Smith, 59 Texas, 406; Lloyd vs. Railroad Co., 53 Mo. 509; Railroad Co. vs. Kilgore, 32 Penn. St. 292; Brooks vs. Railroad Co., 135 Mass. 21.
“ Whether or not a railway company shall be held in damages for injuries sustained by a passenger in attempting to leave one of its trains while in motion, will depend upon whether, under all the circumstances, it was prudent for him to make the attempt.” Beach on Contributory Negligence, p. 157, Sec. 53. Citing the following authorities, viz: Price vs. Railway Co., 72 Mo. 414; Doss vs. Railroad Co. 54 Mo. 27; Parish vs. Eden, 62 Wis. 272; Langhoff vs. Railroad Co., 19 Wis. 515; Cuney vs. Railroad Co., 43 Wis. 688; Leovit vs. Railroad Co., 64 Wis. 228; Railroad Co. vs. Pierson, (Ark.) 4 S. W. Rep. 755; 4 S. W. Rep. 52; Railroad Co. vs. Mask, 2 So. Rep. (Miss.) 360; Hunter vs. Railroad Co., 19 N. E. Rep. 820, and many other cases.
In Solomon vs. Railroad Co., 9 N. E. Rep. 430, it was held that to justify a recovery, the act of the defendant “must put the passenger to a sudden election between alternative danger, or inconvenience, or create some situation which inlerferred, to some extent, with his free agency, and was calculated to divert his attention from the danger, and create a confidence that the attempt could be made in safety.”
This principle has been frequently maintained and upheld by different courts and notably in the following, viz: Railway Co. vs. Ware, (Ky.) 1 S. W. Rep. 493; Collins vs. Davidson, 19 Fed. Rep. 83; Hoff vs. Railway Co., 14 Fed. Rep. 558; Lawrence vs. Green, (Cal.) 11 Pac. Rep. 750; Railway Co. vs. Miller, (Mich.) 9 N. E. Rep. 841; Railroad Co. vs. Casper, (Ind.) 13 N. E. Rep. 122; Stewart vs. Railroad Co., (Mass.) 16 N. E. Rep. 466; Canal Co. vs. Webster, (Pa. St.) 6 Atlantic Rep. 841; Railway Co. vs. Parsons, (Ark.) 4 S. W. Rep. 755.
*807The rule was again formulated thus, in Stroud vs. Railroad Co., (Mich.) 31 N. E. Rep. 184: “In order to make him negligent, he must, as in all other eases, decide upon facts as they appear, as a man of ordinary care would do tinder similar circumstances. It is not the right of a passenger to run evident risks to his safety; but the rule of prudence binding on him must be that which, under just such circumstances, would restrain all men of ordinary prudence. If the mind of an ordinarily prudent man would bo impressed with the behef of danger, he has no right to incur that danger. If the danger would not be apparent, he is not negligent in acting on that assumption.”
To this list might be added,an almost indefinite number, and variety of cases, to the same effect. But it is quite sufficient to say that, on the faith of those quoted and cited, the following principles are firmly established in American jurisprudence, viz:
1. That it is not per se negligence on the part of a passenger to alight from a moving train.
2. The question is one of fact whether, under the particular circumstances the passenger was guilty of negligence in attempting to thus alight; and if, it appear that he was not expressly or impliedly invited to leave the train while running at a slow rate of speed by the employes of the train, but was by surrounding circumstances, he has the right to presume that it is safe for Mm to do so.
3. When a passenger, by the wrongful act of a railroad company is compelled to choose between leaving the cars while they are moving slowly, or submitting to the inconvenience of being carried by the station where he desires to stop, it is liable for the consequences of the choice, provided it is not exercised negligently or unreasonably, and it is not want of ordinary care in the passenger to use the only means to get off, the course of the defendant permitted.
4. To justify a recovery, the act of the company must put the pas- ' senger to a sudden election between alternate danger, or inconvenience, or create some situation which interfered, to some extent, with his free agency, and was calculated to divert his attention from the danger, and create a confidence that the attempt could be made in safety.
5. It is the duty of the passenger to exercise his own judgment, and, if the danger was so great that a man of ordinary prudence would not have attempted it, he is guilty of such contributory negligence as bars recovery; for, when the danger is apparent, it must not be braved, simply because the company is bound to stop the train, or because it is very important that the passenger should stop at a particular place; but, in all cases, the question of liability must depend *808upon whether tlio train was in rapid motion and the danger obvious — the question being whether, under the circumstances, it was prudent in the passenger to make the attempt, to alight, and that depends upon whether the danger was imminent and obvious.
I, therefore, respectfully submit, that the mere fact of the plaintiff having attempted to alight from defendant’s train while in motion, did not constitute his act contributory negligence, because it was voluntary and without an invitation, express or implied, on the part of the company’s employes.
The act of the company put the plaintiff to a sudden election between alternative danger, or inconvenience, and thus created a situation well calculated to divert his attention from that danger, and inspired a confidence in the safety of his attempt to alight therefrom. The danger does not appear to have been either apparent or imminent.
I think the verdict of the jury and the judgment of the court should have been affirmed.
As was appropriately said in Williams vs. Pullman Palace Car Company, 40 Ann. 420, in deciding a kindred question: “This court should seek to place its rulings and jurisprudence in line, and in harmony with those of the Supreme Court of the United States, and of the courts of last resort of our sister States, whenever those decisions do not militate against the principles of our special and exceptional system of laws;” and it is in this spirit I have prepared this elaborate dissent, and in the hope of attaining this end that I place my views on record.