. Tbe injury to tbe plaintiff is alleged to have resulted from the failure of the defendant to stop the train at the station a sufficient time to allow him to alight from it in safety.
1. The first ground of the amended motion for new -.trial is, that the court refused to give the following •-charge as requested: “ The law allows you to take account of the excitement under which an act is done, ..even where the party is not menaced with bodily .hurt, if the circumstances are such as naturally to produce excitement in a prudent person.”
¥e cannot say that this is not good law in the abstract; but we do not think it is strictly applicable to ■the facts of this case. The plaintiff", who testified as a -witness, did not testify as to any excitement he was under .at the time he jumped from the train; nor does the -declaration state anything in reference thereto. Hence we cannot say that the court committed such an error .in refusing to give this charge as would warrant us in .reversing the judgment of the court below.
The second ground is, that the court refused to charge '“that if, by defendant’s negligence, plaintiff" was placed :in the midst of circumstances calculated to excite and • throw a man of ordinary prudence off his ■ guard, and ■.there was'a sudden necessity for him to decide, without .time for reflection, then his failure to act with perfect 'calmness and self-possession might not render him culpably negligent or wanting in ordinary care, even though he acted more unwisely than a man of ordinary prudence perfectly cool and self-possessed would have acted; that the law allows the jury to take account of the excitement under which an act is done, even where the party is not menaced with bodily huid, if the circumstances
2. The last ground of the motion is, that the court charged: “If defendant’s agents were guilty of negligence in failing to stop the train a reasonably sufficient time to allow plaintiff to get off", and after the train was in motion at a speed -which made it unsafe for plaintiff to jump off in the dark, and under the circumstances, if plaintiff* of his own motion jumped off the train and was thus injured, then he could not recover.”
We think this charge was error. It took from the consideration of the jury the question of whether the jumping from the train under such circumstances was an act of negligence or of ordinary care and diligence. That was a question for the jury and not for the court. See West End and Atlanta Street Railroad Company vs. Mozely, decided at the last term of this court, (79 G-a. 463,) where a similar charge was held to be error. We have repeatedly decided that the question of what is or is not negligence, in cases of this sort, is exclusively for the jury. It is a mixed question of law and fact which the jury must settle for itself.
3. If this case had been tried upon a right theory, I do not know that we would grant a new trial even upon this ground, under the facts of the ease. But it appears to us that the case was not tried upon the true theory. The main question in this case is, whether the railroad company stopped its train a reasonably sufficient time to allow the plaintiff to depart from the train in safety. If it did, and he jumped off the train after it was again
While we do not feel inclined to reverse the judgment (for it appears to us that the verdict is sustained by the evidence), yet we feel constrained to do so under the facts of this case.
Judgment reversed.