Appeal
from circuit court, Montgomery county; JOHN P. HUBBARD
Judge.
This
was an action brought by the appellee, James R. Stewart
against the appellant railroad corporation, and sought to
recover damages for personal injuries alleged to have been
caused by the negligence of defendants' employes. All the
facts, as shown by the bill of exceptions, are sufficiently
set forth in the opinion. On the evidence, as adduced, the
court gave the following charge, ex mero motu:
"The
plaintiff, gentleman, brings this action to recover damages
for alleged injuries done to him by defendant. The fact that
defendant is a corporation is no matter for the consideration
of the jury, because we are not trying, so far as that is
concerned, the parties here, who are the parties in the case.
We are trying the facts, and then will have to apply the law
to the facts, and whether this is a defendant corporation or
individual has no place in the cause, because it cannot
affect the facts in the case, and it is the facts you must
deal with. I have heretofore instructed you how to arrive at
a verdict. You are to use common sense, every-day experience
and your reasoning faculties. Look at things in their
ordinary shape and conditions, and find out what the true
facts are, as disclosed in this evidence. When you come to
examine the testimony, you shall look at the interest they
may have in the suit, or the bias they have with reference to
the case in which they testify, either one way or the other.
This rule does not deed or intend to say that you are not to
believe the parties because they are interested in the case
or because they are biased. But it is a test to apply to get
at the exact truth, because persons thus situated give to
their testimony a coloring that really the true facts do not
warrant. It is out of the mass of the testimony that you are
to reach the truth, because that is substantially what we are
trying to find out. In this case, it is necessary for you to
ascertain the facts in its different phases in order that you
may apply the law as applicable to each phase of the case.
The first proposition is that the plaintiff must show you
that he suffered injury by the negligence of this defendant
and when I speak of the negligence of this defendant, I mean
also its employes, because it is responsible to this
plaintiff for negligence of its employes, because it carries
on its business through their instrumentality. Another
proposition is with reference to the care in this case.
Different cases require different degrees of care. In the
care which would be required of a man in an ox-cart going
along the road who would accommodate a man getting upon, and
in authorizing the man to get upon, it, would be one degree
of care. Perhaps it would be a different degree of care if he
was driving a mule team, and still another degree if an
effort was made to get upon a street-car going at its speed.
Another degree of care would be required where the
instrumentality was a steam-car, and the law says the highest
degree of care must be exercised in instrumentalities of this
sort. And persons undertaking to board a train must exercise
a degree of care commensurate with the danger of the
instrumentality used. So the rule is, so far as the employes
of this road, this defendant, are concerned, that they must
exercise this high degree of care commensurate with the
character of the instrumentality used. It must necessarily
follow that a passenger attempting to board the train must
use or exercise a degree of care commensurate with the peril
in that attempt. Now, first, was the defendant guilty of
negligence? It was the duty of this defendant to stop its
train at this station. If you believe from the evidence that
it was a way-station, and it was the duty, which it was when
ordered by the plaintiff to stop, when flagged for that
purpose, and the testimony is incontrovertible, and shows
that this was a flag-station at which the train usually
stopped, and this train was flagged, and the signal given
that the train would stop and take on this passenger, it was
the duty of the defendant to bring the train to a full stop
in order that the passenger might get on board, and if the
passenger tried to get on board prior to the time of coming
to a full stop, he did it at his peril, because he had a
right to require this train to come to a full stop before he
tried to get on. This is the first rule. And if the plaintiff
tried to get on the train while it was in motion, before it
came to a full stop, it was a peril which he assumed, if it
was perilous for him to undertake it. What are the true
facts? Was it perilous? Did he undertake to get on board the
train before it came to a full stop? Was it perilous for him
to do so? Did it so appear to him, under the facts? Would it
even appear to him that it was perilous for him to undertake
to board the train, while in motion as it was then, and then
going? If it was, and that was the cause of the accident to
him, then it was his fault, because a passenger will not be
allowed to board a train of cars moving at a rate of speed
which is ordinarily dangerous to undertake to enter, and, if
any injury resulted by reason of that fact, he could not
recover damages for it. It is the duty of the train to stop
still, and it is the right of the passenger to have it stop
still. But although you find it true that he undertook to
board the train, and it was dangerous, and so much so that he
was guilty of negligence himself, yet, if that negligence on
his part was not the cause of the injury, did not directly
contribute to it, it can be no excuse for defendant that he
was acting improperly and negligently. [If the injury was
caused by the rate of speed being suddenly increased, or by
reason of the cars being suddenly jerked by putting steam on,
and that started it off, and that resulted in jerking him
from the step, or preventing him from putting his foot on the
step to board it, that would be negligence of the defendant.
The prior negligence of the plaintiff in simply undertaking
improperly to board the cars would not avoid his right of
recovery.] That is the proposition, because it is the duty of
the train to come to a full stop, and if, instead of coming
to a full stop in order that passengers might get on board,
[it was running at such a rate of speed that it did not make
it obviously dangerous for the plaintiff to undertake to
board it, and in this condition, instead of stopping
suddenly, undertook to move off from the depot, and that
caused this jolting of cars, if such be the fact, that they
suddenly started off with a jerk, then it was the negligence
of the defendant, and if that caused the injury, it would be
responsible, if the plaintiff has shown any injury.] Now,
then, when you come to consider this proposition, you must
look at it in the light of the evidence. Was the train in
motion intending to stop, slacking up, and was it the purpose
and intent of this train to stop then and there, coming to a
full stop for the purpose of passengers getting aboard? [If
the purpose and object of the train was only to slow up at a
slow rate of speed, and its conductor announced to the
passengers or made the announcement, 'All aboard,'
then the passenger had a right to look at this rate of speed,
and to look at this command or direction of the conductor,
with reference to whether it was perilous for him to
undertake to enter the train or not; and this, even though
the accident occurred by reason of his undertaking to board
the train when it was in motion, and without the accident
being caused by the sudden jerk of the train, because if the
train was moving at the rate of speed so slow that it is not
ordinarily perilous, or would not be perilous to board the
train, and the conductor, however good may be his faith,
directs the passenger to get aboard by announcing 'All
aboard,' and the passenger, in obedience to that,
undertakes to board the train, then it was the negligence of
the defendant for which it is responsible.] The next
proposition in the case is, how did the accident in point of
fact occur? You have the testimony as to how it was, whether
the plaintiff was walking along holding on to the railing, or
whether trying to get aboard the train, and what
occurred,-how he fell back, and all that sort of thing. You
are to ascertain exactly how this was, in order to look at
the law of the case, when you come to apply the facts to the
propositions of law that are announced to you. Negligence
from one state of facts might not be negligence in another
state of facts. It depends upon the facts in the case and the
circumstances attending the case. Now, if Mr. Stewart, the
plaintiff here, took hold of this train when the train was
reasonably and to all appearances going to come to a full
stop, and he, instead of waiting for it to come to a full
stop, concluded to take hold of it, and undertake to board
it, and it in motion, that was negligence on his part. [But,
if the train had gone so far, if you find from the evidence
that it had so gone, beyond its usual place of stopping as to
look as if, or indicate reasonably that, it was not going to
come to a full stop, and the conductor directed him to get
aboard, and he did undertake to do it, and it was not
obviously dangerous for him to do so, the defendant would be
responsible and liable if he undertook it, and used the
ordinary care to get aboard, and injuries resulted to him;
and that without reference to whether the train gave a sudden
jerk or not.] I believe I have just given you the other rule,
that if without the conductor's giving the direction to
him to get aboard, and the train was moving in such a manner,
and having...
