
    No. 365.
    A. B. Caruth and Wife vs. Texas & Pacific Railroad Company.
    Same syllabus as in Odom vs. Railroad, decided this term.
    APPEAL from the Ninth District Oourt, Parish of De Soto. Hall, J.
    
    Geo. E. Head, Lee & Liverman and J. G. Egan & Son for Plaintiff and Appellant:
    The defendant company having plead contributory negligence the burden of the proof is upon them to show it 15 Wallace, 406, 407; 93 IT. S. 391; 40 An. 417.
    Contributory negligence can not be set up asa defence when such alleged negligence was the result of tremor and excitement, produced by the defendant’s misconduct, or when the latter’s negligence puts the plaintiff to a sudden election between acting as he did or submitting to a grave inconvenience. 2Redfield on Railways, See. 194, etseq.; Wharton on Negligence, Secs. 395,377; 2 Thompson on Negligence, p. 1174; Lehman vs. Railway Company, 37 An. 708.
    It is the duty of the railway carriers to provide safe modes of ingress and egress to and from their cars; to provide sufficient lights at their stations wherepassengers take or leave their trains at night; to have its stations open and lighted, and its servants ready for the accommodation of those who may wish to leave its trains or depart by same. For neglect of said duty resulting in injury to passengers the carrier is responsible. Thompson on Carriers of Passengers, p. 708: Wharton on Negligence, Secs. 652, 644; Moses vs. Railway Company, 39 An, 653, 4, 5 and 6; Penniston vs. Railway Company, 34 An. 777; Lehman vs. Railway Company, 37 An. 705; 37 An. 648, 698.
    
      Passengers have a right to proper and sufficient time for alighting from a train at their places of destination, and it is gross negligence to start a train while they are on the steps of a car platform in the act of alighting. They are responsible to injuries occasioned to passengers by such negligence. 87 An. 707..
    Where a passenger is on the steps of a car platform in the act of alighting therefrom and the conductor starts the train without warning and the passenger is precipitated to the ground by the sudden jerking motion of the train and injured, such conduct shows a reckless disregard by the carrier for the safety of its passengers and a gross neglect of its duty to them, and they are responsible in damages for the injuries received by passengers occasioned by such conduct. 35 An. 202.
    Two thousand dollars damages is not sufficient in a case of this kind, taking into consideration the following elements of damages, which are proper in estimating and assessing the same: (1) Expenses of surgical and medical attention and nursing. (2) The bodily pain according to its degree and duration. (3) Bodily injury, taking into account the loss of time the extent and probable duration of the injury, its effect on the health; the mental and physical powers; the capacity for labor, and the earning of money. (4) The probable duration of the injury, as to whether temporary or permanent. Lacey’s Digest Railway Dec., p. 172; Nos. 23, 24, p. 173, Nos. 43, 44, 46, 47, Sedgwick; Munsun Dam., p. 243 (note).
    The amount of damages in this case is totally insufficient where the evidence shows that the injuries are permanent, and where a vigorous and healthy young wife is reduced by them to a chronic invalid.
    
      Wise & Herndon for Defendant and Appellant:
    1. Plaintiff must make his case certain. The burden of proof is on him.
    2. A railroad company is not liable to a passenger for an accident which the passenger might have prevented by ordinary attention to her own safety, even though the agents in charge of the train are tyso remiss in their duty. 30 An. 15; 32 An. 615; 33 An. 154.
    3. One who passed out of a railway car and got upon the platform thereof to step or jump from the car while it was in motion can not recover for injuries suffered in consequence thereof, even though he had reached his place of destination, and the train which had previously stopped to permit passengers to alight, ead not so stopped for a reasonable length of time. 6 Am. and Eng. Ry. Oases, 879; 41 An. 795; Fournet et ai. vs. Morgan’s L. & T. R. & S.S. Co., July term, 1891, of ;his court; see Southern Reporter fo.r November, 1892, p. 541.
    4. It is contributory negligence for a passenger to leave a car while it is in motion, and in an action by a passenger to recover damages for injuries received while so alighting, the court should so instruct the jury. 33 Am. and Eng. Ry. Cases, 444.
    5. Passenger. — Duty of conductor to assist passenger to alight. No duty rests upon the conductor of a railway traiuto assist a female passenger to alight from the car. 31 Am. and Eng. Ry. Cases, 45; 33 Am. and Eng. Ry. Cases, 520.
    6. Duty of conductors in starting train as to passengers alighting. The conductor of a railway train is only required, after having the station announced, to stop the.train, and hold it such reasonable time as will permit the passengers to alight in safety. It is not his duty “to know” that a passenger has left the cars before he gives the signal to start. 31 Am. and Ehg. Ry. Cases, 45; 35 Am. and Eng. Ry. Cases, 520.
    7. Excessive and vindictive damages will not be allowed. 11 An. 292; 40 An. 64.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff brought this suit to recover damages against the defendant company for personal injuries inflicted upon his wife when she was leaving defendant’s train at Mansfield Junction.

The answer is a general denial, with a plea of contributory negligence on the part of defendant.

The case was tried by a jury and a verdict rendered in favor of plaintiff for $2000 damages. The defendant appealed from the judgment rendered thereon.

The plaintiff was a passenger on defendant’s train, and left the same at Mansfield Junction.

The evidence establishes the following facts: That the train was behind schedule time and stopped at the Junction a very short time —not sufficient for passengers to get on or off with safety; that Mrs. Oaruth used due diligence in the short time allowed her in leaving the train; that when she was on the car step, in the act of alighting, the train started and she was injured by being thrown, as the plaintiff declares, “between the fender and the end of the car, struck in the back and pitched forward.”

The testimony introduced to contradict this is negative in character. The train was in motion when the witness, Yarborough, assisted her from the step of the car, and it is probable that the car moved before he assisted Ser and inflicted the injury upon her. It is in evidence that she had received no fall and that she had been placed ¡in no situation to inflict an injury upon her before she entered defendant’s car. Immediately on reaching the ground she complained of being hurt. She was examined the next day by a physician and numerous bruises were found upon her body and located in such a manner as to be inflicted in the manner which the husband'describes. It would be a- very violent presumption to hold that these bruises were self-inflicted for the purpose of this suit, or to hold that her exclamation of being hurt was made for the same purpose. The law as announced, in the case of Adam vs. Railroad, decided at this term, is applicable to this, and it will be unnecessary to again go over the same ground.

We have some difficulty in fixing the amount of damage inflicted upon plaintiff’s wife. The evidence as to the results of the injury is unsatisfactory to us. We are unable to say whether the disease with which defendant is suffering is in consequence of this injury. We can go no further than to say that she was bruised and undoubtedly temporarily suffered.

The amount of damages allowed by the jury is excessive.

We can scarcely distinguish this case from the case of Odom vs. Railroad, either in the facts or the injury inflicted upon plaintiff’s wife.

We will therefore fix the damages at $500.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to reduce the amount of damages to the sum of five hundred dollars ($500). In other respects it is affirmed; plaintiff to pay costs of appeal.  