
    The Iron Railroad Company v. John Mowery.
    1. On the trial of an action against a railroad company by a passenger, for an injury received through a collision of the trains of the company, a prima facie presumption of negligence arises against the company.
    
      2. Where a passenger, to avoid impending danger, attempts to leave the car in which he is riding,- believing, upon reasonable grounds, that by so doing he will escape injury, and, while in the act of leaving, is injured through the company’s negligence, he is not chargeable with contributory negligence, although, had he made no attempt to leave the car, the injury would not have happened.
    3. Where a party remits a part of a judgment in his favor to avoid a reversal of the same, he cannot prosecute error to reverse the judgment thus reduced in the amount, although the court may have been wrong .in finding that the judgment was excessive.
    Eeeok to tbe District Court of Lawrence .County.
    
      The plaintiff took passage on the defendant’s railroad, to be ■carried from the city of Ironton to Etna Station. While on the .way, the train was stopped to prevent injury to some cattle that had strayed upon the track, and as the locomotive again started, a coupling broke or gave way, leaving the car in which the plaintiff was riding, and others, standing on the track. In the course of from eight to ten minutes a coal train belonging to the defendant came up behind, and ran into the rear car of the standing cars, causing an injury to the plaintiff.
    To the plaintiff’s action to recover for the injury, alleging it to have been caused by the company’s negligence, the company answered, denying its own negligence, and alleging contributory negligence on the part of the plaintiff. It appeared from the evidence in the case, that as the detached cars were standing on the track, the plaintiff, on hearing a loud noise from without, and discovering a rapid movement of some of the passengers, left his seat for the purpose of going out of the car, and as he reached the front platform, the collision occurred, and resulted in breaking his log. It also appeared that the conductor of the train told the passengers to keep their seats,' •and that if the plaintiff had not left his seat, he would not have been injured. But the jury found, specially, that the' plaintiff was not guilty of negligence in attempting to leave the ear, this being the only negligent act charged against him.
    The court, among other things, charged the jury as follows “1. It being admitted that the defendant is a carrier of. passengers, that, on the occasion mentioned in the petition, the plaintiff was a passenger on defendant’s train, having paid his fare as stated, it was the duty of defendant to carry him safely to the point of his destination without injiuy ; and when it is shown that the defendant failed to carry the plaintiff safely to the place of his destination, this failure puts the defendant, prima facie, in the wrong, and the burden of proof devolves upon it to show that the injury was the result of a pure accident, and that it could not have been prevented by the* exercise of the utmost care and skill which prudent men are-accustomed to employ under similar circumstances.
    
      “ 5. Although, the defendant did not exercise the degree of care required of it, yet, if the plaintiff was also in fault, and that fault contributed directly to produce the injury, he cannot recover. His right to recover, however, is not affected by his having contributed to his injury, unless he was in fault in so doing.”
    To each of these instructions the defendant excepted. The-jury returned a verdict for the plaintiff for $2,600, upon which, after overruling a motion for a new trial, made on the ground, among others, that the damages were excessive, judgment was entered.
    They also specially found as follows :
    “ Third Question. If he (plaintiff) did so leave and go out,, did he do so in good faith, believing and having reasonable-grounds therefor, that he, or his wife, was in great danger by remaining seated in the car, and that he could better avoid said danger and save himself and wife by so doing ?
    “ Answer. Tes.”
    On error to the district court, the following judgment and entry were made:
    “ This cause was submitted to the court upon the petition and the assignment of errors therein, and was argued by counsel, on consideration whereof the court do find that there is no error therein, except in regard to the amount of damages-assessed by the jury, which damages the court do find were-excessive, and for that reason, a new trial ought to have been granted. The court, therefore, are of the opinion that, unless the damages in excess of fifteen hundred dollars are remitted by the defendant in error as of date of judgment, said judgment of the court of common pleas should be reversed ; to which ruling of the court, that said damages are excessive, and in requiring said defendant in error to enter said remittitur of said damages, as a condition of affirmance of judgment, defendant in error excepts, and asks that his exceptions be noted,, which is done. Thereupon said defendant in error, while not waivipg, but insisting on his right to the whole amount, entered said remittitur to date as of time of judgment of damages in excess of fifteen hundred dollars; and said re.mittitur having been entered, it is considered by the court, that said judgment of the court of common pleas, with said remittitur so entered as of date of said judgment, be and the same is hereby affirmed with costs, and it is ordered that a special mandate be sent to the court of common pleas, to carry said judgment into execution.”
    The plaintiff assigns, as error in this court, the judgment finding the damages excessive, and compelling him to remit §1,100 of liis verdict.
    Ry cross petition, the defendant assigns as error the foregoing instructions to the jury.
    
      O. F. Moaré and Neal <& Oherrington, for plaintiff in error:
    Mowery was guilty of contributory negligence. Quinn v. Railroad Co., 51 Ill. 495 ; Railroad Co. v. Johnson, 38 Ga. 409 ; Hickey v. Railroad Co., 14 Allen, 429 ; Wharton on Neg. §§ 300, 302, 361, and notes; Laing v. Colder, 8 Pa. St. 479 ; Railroad v. Elliott, 28 Ohio St. 340 ; Railroad Co. v. Rathgeb, 32 Ohio St. 66.
    As to a prima faoie case of negligence, see Sharman & Redfield on Neg. § 280; Holbrook v. Railroad Co., 12 N. Y. 536 ; Caldwell v. Steamboat Co., 47 N. Y. 282; Curtis v. Railroad Co., 18 N. Y. 534.
    
      Le&t c& Hamilton and W. A. Hutchins, for defendant in •error:
    As to contributory negligence, see Shearman & Redfield on Neg. § 28, note 2; Id. § 29, 31, and notes ; Wharton on Neg. § 301, 304. '
   Boynton, J.

This is a petition in error by the plaintiff, to reverse the judgment of the district court for wrongfully affirm-' ing the judgment of the court of common pleas ; and the judgment of the court of common pleas for alleged error in the charge of the court to the jury ; and a cross petition in error by the defendant in error to reverse the finding of the district •court that the judgment rendered on the verdict was excessive, and that, consequently, the judgment ought to be reversed, unless be, tlie defendant in error, would remit the amount of the-judgment in excess of $1,500.

Whether a presumption of negligence arises, in all cases, against a railroad company, from the mere fact that an accident has occurred from which a passenger receives an injury while-, being carried over the road of the company, is a question not. arising in the present case, and therefore is not determined but where an injury results to a passenger from a collision of. the trains of the company, we have no doubt that a ygri/mwfacie presumption of negligence arises against the company, and that unless the company relieves itself from liability, by showing that the injury did not result from its carelessness, or by showing contributory negligence upon the part of the passenger, judgment should be rendered against it. To this effect the authorities seem uniform. Stokes v. Salstonstall, 13 Pet. 181; Laing v. Colder, 8 Barr, 483 ; Christie v. Griggs, 2 Campb. 79 ; Carpul v. London & Brighton Railway Co., 5 Ad. & El. N. S. 747 ; Holbrook v. Utica & Schenectady R. R. Co., 2 Kern, 236; Curtis v. Rochester & Syracuse R. R. Co., 18 N. Y. 534-542.

We therefore think the court did not err in charging the-jury that the burden of proof was on the defendant below, to-establish the fact that the injury did not result from its negligence.

Nor do we think the court erred in saying to the jury, that the plaintiff’s right to recover was not affected by his having, contributed to his injury, unless he was in fault in so doing. The only act of the plaintiff which is alleged to have contributed to his injury, was the leaving of his seat in a moment-of excitement, and going forward to the platform of the cai’, which he had just reached when the injury was received. In respect to the attempt to leave the car, the jury found specially, that in so doing, the plaintiff believed, upon good grounds for his belief, that he could better avoid the danger, and save himself and wife from injury. This finding established the fact, that the plaintiff’s act in leaving the car, although contributing to the injury, was not a negligent act, and hence, if the language. of the charge was at all objectionable, no prejudice resulted from it to the defendant.

The remaining question arises on the assignment in the cross petition, namely, that the court erred in finding the judgment to be excessive in amount, and in determining to reverse it for that reason, unless the plaintiff should • enter a remittitur of the excess. The remittitur was entered for such excess, and judgment rendered for $1,500. In our opinion the plaintiif below is not in a position to object to the action of the court in this behalf.

The defendant, under the finding of the district court, was entitled-to a new trial, unless the necessity therefor was obviated by the action of the plaintiif. The court gave him his choice to accept a reversal of the judgment and a new trial upon the merits, or to remit the sum which, in the judgment of the court, was in excess of the amount that ought to have been recovered. The plaintiff elected to receive the amount of the judgment less the excess. By this election he was bound. He obtained a judgment for $1,500, which he would not have received had he not assented to the action of the court. That he assented reluctantly does not alter the ease. By giving consent he became bound by the action of the court.

Judgment affirmed.  