
    Alabama & Vicksburg Railway Company v. Jefferson Jones.
    1. Railroads. Passengers. Invitation to alight. Moving train.
    
    The words “this door,” used "by a flagman of a passenger train to a passenger starting to leave the car after the train had started from a station, do not amount to an invitation to alight from a moving train.
    
      2. Same. Contributory negligence.
    
    A passenger is guilty of contributory negligence if he get oft a moving train and hold on to the railing of the platform with’ his hands until he is jerked down and dragged until he is no longer able to maintain his hold.
    Ebom tbe circuit court of Scott county.
    Hon. John R. ENOCHS, Judge.
    Jones, tbe appellee, was plaintiff, and tbe railway company, tbe appellant, was defendant there. Erom a judgment in plaintiff’s favor tbe defendant appealed to tbe supreme court. Tbe facts are stated in tlie opinion of tbe court.
    
      McWillie & Thompson, for appellant.
    But for certain averments of tbe declaration going to remove tbe imputation of contributory negligence arising on other allegations thereof, it would have been demurrable. Meyer v. King, J2 Miss., 1.
    Tbe plaintiff having failed to offer any evidence, in support of tbe particular allegations relied on to overcome tbe imputation of contributory negligence arising from bis admitted attempt to alight from a moving train at night without knowing whether its rate of speed made tbe act dangerous or not, tbe court below erred in refusing tbe peremptory charge asked by defendant. Moreover, tbe manner in which tbe plaintiff descended from tbe train was marked by contributory negligence, and justified tbe request for a peremptory charge. All tbe evi-deuce, including tbe plaintiff’s own testimony, showed that be descended from tbe moving train witb bis back to tbe engine and continued to bold on to tbe band rail until be lost bis footing.
    It was conceded on tbe trial that tbe train did stop at Morton, and the question as to that part of tbe complaint is as to how long it stopped. The plaintiff did not state the time, and bis witness Manning said it stopped two minutes, while bis witness Moore'said a minute and a half, either of which periods, as can be easily tested, afforded ample time for tbe plaintiff to alight in safety. It is true that tbe plaintiff’s counsel then asked the witnesses to indicate, while be held bis watch, when, after a given signal, they should think that tbe periods mentioned by them, respectively, bad elapsed, and that only a quarter of a minute bad expired when they responded witb tbe indication. Tbe test lacks probative force, for in tbe bush that follows a suspension of the trial the witness with the eyes of the whole assembly upon him will always find that less time has elapsed than he supposed. If, however, we give it the utmost effect that could be claimed for it, it can only be treated as an experiment showing that tbe two witnesses were unable to estimate tbe passage of time witb accuracy, and be who introduced tbe testimony would have succeeded in breaking it down.
    Tbe defendant’s conductor said tbe length of tbe stop was not less than two minutes; tbe flagman said three or four minutes; tbe engineer said it was tbe usual stop, which was two or three minutes, sometimes five; tbe telegraph operator, not in the employ of defendant at tbe time of trial, said tbe usual stop was one to two minutes, but on tbe night in question tbe train stopped four or five; tbe flagman showed that it stopped long enough for him to get off and go to tbe baggage car and unload two pieces of baggage and load one, in which statement be was confirmed by tbe conductor, and tbe operator whose duty it was to make reports of delay at station says be timed tbe train by bis watch, and the stop was between four and five minutes. The train manifestly stopped several minutes, and if the plaintiff and his companion were not asleep when it reached Morton, they must have done something to delay them on the train, as appears likely from their getting off from the white people’s • car, where they had no business to alight.
    
      Oreen & Oreen, for appellee.
    The evidence, which the jury found to be true, shows that upon the arrival of the train at Morton plaintiff and his companion at once got up and went to the door, and when they reached it the train was in slow motion, and that the plaintiff’s companion, Manning, who was in front, got off safely, but when appellee was about to get off, the train gave a sudden violent lurch and threw him off his feet, and having hold of the banister he was dragged some distance and seriously injured. Plaintiff testifies: “The train was moving; it made a lunge, and before I knew anything I was off. This is all I can tell you.”
    The evidence showed that the train only made a stop there of about one-quarter'of a minute, and there were no proper lights at the station.
    The appellant’s violation of duty was manifest and manifold — in not stopping a sufficient length of time to allow the passenger to alight, in suddenly starting the train with such a jerk, after such a step, as to throw a passenger off the train, and in failing to have proper lights and a proper place for passengers to alight from the train. The injuries were so many and serious, and having been inspected by the jury, this court cannot say that the verdict is excessive. Hutchinson on Carriers (2d ed.), .612.
    The right of appellee to recover in this state is settled by Railroad v. Kendrick, 40 Miss., 386; Railroad v. Whitfield, 44 Minn., 482; Railroad Go. v. West, 66 Miss., 310; Davis v. Railroad, 69 Miss., 136; Wooten v. Railroads 79 Miss., 26.
   Cos, J.,

delivered tbe opinion of tbe court.

Jefferson J ones, an aged negro, was a passenger on one of tbe defendant’s passenger trains from Jackson to Morton. Arriving at Morton in tbe night, be either fell or was jerked down upon tbe depot platform as be attempted to alight, and thereby sustained certain injuries, for which be brought suit and recovered judgment. In his declaration be alleges that defendant so negligently operated its said train as that it did not stop to permit plantiff and other passengers to get off, or, if it stopped at all, which plaintiff denies, said train was so negligently operated as that a reasonable time was not afforded plaintiff and other passengers thereon to get off before the said train was . again negligently set in motion by the defendant; that plaintiff, when he reached the platform of said car, was unable to see and appreciate how fast the train was running, as the said platform was negligently without light, 'and the darkness of the night, together with the blinding effect of coming out of the lighted car, and the plaintiff’s inexperience with moving trains under such circumstances, prevented an appreciation of the danger in getting off the train under the circumstances; that the brakeman or porter, defendant’s servant, whose duty it was to give direction to passengers as to getting off and on said train, then and there, with knowledge of the danger to which he was exposing plaintiff, negligently directed and commanded plaintiff to get off of said train while in motion, and relying upon the superior knowledge of the said servant of the risk of such action, and that he would not (being charged with plaintiff’s safety) 'direct plaintiff to get off said train unless it was safe to do so, and in ignorance of the danger attendant thereon, especially for persons, like plaintiff, having no experience in getting off moving trains, plaintiff obeyed said directions and command, and, taking all precautions then known to plaintiff in pursuance of said direction and command, ■plaintiff attempted to get off of said train while in motion. The declaration further alleges, in substance, that plaintiff, acting upon tbe command of defendant’s servant in attempting to get off while tbe train was in motion, caught bold of tbe band rail of tbe steps of said car to get off, and, not being informed by defendant’s servant that tbe effect of so doing would be to drag plaintiff along with said car, was then and there dragged along by said train one hundred feet, tbe servant of defendant whose negligence bad caused plaintiff to attempt to get off standing then and there and seeing plaintiff’s danger, and, with tbe appliances at band to signal tbe engineer to stop tbe train, failed so to do, but allowed tbe engineer to continue to increase tbe speed of tbe train until plaintiff was no longer able to bold on, and was then and there burled by tbe rapidly moving train with great violence upon tbe ground.

This declaration could not possibly have been sustained against a demurrer on tbe ground of contributory negligence, except for tbe averment that plaintiff áttempted to get off tbe moving train in obedience to tbe direction and command of defendant’s servant. TJpon tbe trial it was evident that tbe train came to a full stop, and remained standing for an “interval variously estimated by tbe witnesses at from one to five minutes, though guessed by several witnesses, while tbe watch was held, at a quarter of a minute. Tbe conductor bad time to walk -a car length from tbe ladies’ car to tbe baggage ear, and tbe porter bad time to go from tbe car for negroes to tbe baggage car, take off' two pieces of baggage and put on one, and signal tbe conductor,- “All right,” before tbe train moved. When plaintiff got to tbe platform of tbe car, tbe train was in motion. It was dark. He did not know bow fast tbe train was going, but be knew it was in motion. His companion just ahead of him jumped or stepped off. He went down to the last step with a small grip in bis left band, and, clutching tbe band rail with bis right, attempted to get off on tbe depot platform. He either stepped, fell, or was jerked from tbe step, and was dragged with bis back to tbe engine a short distance by tbe train, until defendant’s porter, seeing be was being dragged, shouted to him to turn loose, and got hold of him and pulled him out. There is nothing in the evidence to sustain the allegation that a servant of defendant directed and commanded ¡olaintiff to get off the train while in motion. True it is that plaintiff said he was invited off the train by the flagman, but, in response to'the question, “What did he say to you ?” he responded, “He said, ‘This door.’ ” This clearly was a direction to plaintiff as to which door to leave the car by, and not an invitation to steji off the train. The train was moving east. He got off on the south side, and, clinging to the hand rail with his right hand as he stepped or fell, this inevitably jerked him down backward, and caused him to be dragged hackward until his grip upon the hand rail was loosed. We see nothing in the facts of this case which tends to acquit plaintiff of negligence in getting off the train at the time, in the manner, and under the circumstances shown, and that such-negligence contributed proximately to his injury is certain.

Reversed and remanded.  