
    G., H. & S. A. R’y Co. v. French Smith.
    (Case No. 3818.)
    1. Contributory negligence. — Stepping from a moving railway train, which checks its speed at a station instead of stopping, as required bylaw, is not necessarily negligence in him who thus steps from it and is thereby injured. If in stepping from the train he takes no more risk than a man of ordinary prudence would take under like circumstances, be is not thereby precluded from recovering for injuries sustained. If, on the contrary, he failed to exercise ordinary prudence, and stepped from the train when a prudent man would not, his recovery of damages for injury would be prevented by his contributing by h:s negligence to his own hurt.
    Appeal from Guadalupe. Tried below before the Hon. Everett .Lewis.
    Appellee sued to recover for personal injuries received while alight! mg from the cars of appellant at Kingsbury depot, claiming that the injuries were caused by the negligence of the servants of appellant in not stopping the train for the time required by law.
    
      Appellant defended upon the ground that plaintiff, in alighting from the train while in motion, was guilty of such contributory negligence as precluded a recovery upon his part.
    Verdict and judgment for appellee for $1,250.
    
      E. P. Hill, for appellant.
    
      W. E. Goodrich, also for appellant.
    
      John Ireland, for appellee.
   Watts, J. Com. App.—

Negligence upon the part of appellee in alighting from the moving train is asserted as a defense against a recovery for the injuries received by him in falling from the platform as he stepped from the train.

The supreme court of Arkansas, in the case of St. Louis, I. M. & S. R. R. Co. v. Cantrell, reported in American and English Railroad Cases, vol. 8, part 1, p. 202, said: “That it is imprudent and want of care, as a general proposition, to alight from a train while it is in motion; but whether it was so in a particular case must depend upori the circumstances under which the attempt was made. It would not be so if the train was moving so slowly that no damage could be reasonably apprehended.”

In Chicago & Alton R. R. Co. v. Bonfield, American and English Railroad Cases, vol. 8, part 3, p. 494, the supreme court of Illinois made use of the following observations: “ It is claimed that alighting from a train in motion is such negligence as to preclude all recovery, whatever the circumstances. This may be true, and no doubt is, when the company is not in fault, and the train has considerable speed; but it is not necessarily true where it is a question of comparative negligence. A train might be barely in motion, moving so slowly as to get off would be attended with no danger whatever, etc. It is the long-settled doctrine of this court that .negligence is a fact the finding of which is clearly within the province of a jury.”

With us the rule is also well settled, that, in the absence of a statute defining the acts which constitute negligence, then it is a question of fact for the determination of the jury. T. & P. Railway Co. v. Murphy, 46 Tex., 357. We have no statute which makes it an act of negligence to get off a moving train, and it would be error for the court to instruct the jury that such act constituted negligence.

The charge complained about submitted to the jury the question of negligence as one of fact; and it is presented by the charge in these words: “ If plaintiff Smith took no more risk in leaving the train than ordinarily prudent men would take under like circumstances, then he is not precluded from recovering on account of negligence. If the jury believe from the evidence that the plaintiff did not exercise the care and prudence which, under like circumstances, ordinarily prudent men would have used in getting off defendant’s train, and thereby was injured, he is not entitled to recover anything in this suit.”

These instructions submit what seems to us to be the appropriate tests to be applied by the jury in determining whether or not appellee was guilty of negligence upon that occasion, and the evidence warranted these instructions, for it appears that the train at the time was moving very slowly. JSTow if, under the circumstances, the danger was apparent, men of ordinary prudence would not have alighted from the train; but if the danger was not apparent, then men of ordinary prudence might have adopted the. other course. These charges possess the merit of containing true tests, the application of which was within the comprehension of the jury.

There was no error in that portion of the charge where the jury are in effect told that if the train was not stopped at the depot for the time required by law, and that the appellee was injured by reason thereof, that this constituted negligence upon the part of the appellant. T. & P. R. W. Co. v. Murphy, supra.

While the evidence is not of that full and satisfactory character that might be desired as to the extent of appellee’s injuries, the jury having determined, from the evidence, the amount of compensation therefor which was by them deemed just and proper, we cannot say that the verdict is so grossly excessive as to authorize this court in saying that it is clearly wrong.

The charges asked by appellant, so far as they contained correct principles of law applicable to the case, were in substance given in the main charge. The others were correctly refused as being inapplicable and upon the weight of evidence.

There is no error, and the judgment ought to be affirmed.

Affibmed. ■

[Opinion approved May 5, 1883.]  