#### Imhoff vs. The Chicago & Milwaukee Railway Company.

*Erroneous instructions given in writing, should he*withdrawn.— *When, liability of railroad, as common carriel’ of passengers, ceases.*

1. The liability of a railroad company, as a common carrier, for the safety of passengers ceases after they have been made aware of their arrival at the place of destination, and have had a reasonable time to get off the train.

2. Such “reasonable time” is the time within which persons of ordinary prudence in like circumstances get off the cars.

3. In an action against a railroad company as a common carrier of passengers, for personal injuries, there being evidence from which the jury *might*have found, that the relation of common carrier had ceased before the accident, a judgment for the plaintiff is reversed because the jury were instructed (by a distinct proposition in writing) that defendant was liable if the injury was caused by its negligence, without negligence of the plaintiff contributing thereto; although by a *mbseguent*written instruction they were told, that “if a reasonable time had elapsed for the plaintiff to get out of the cars, the relation of common carrier ceased, and the defendant could not be held liable as a common carrier,” and were orally instructed that in such a case 'the plaintiff could not recover at all in this action.

*i.*Erroneous instructions given for one party are not in general sufficiently corrected by inconsistent explanatory instructions given for the other party; but should be withdrawn.

APPEAL from the Circuit Court for *Milwaukee*County.

Tbe plaintiff was a passenger on tbe defendant’s road from Chicago to Milwaukee ; and it is alleged in tbe complaint tbat while getting off tbe cars, after then- arrival at tbe latter place (which was about one o’clock at night), she, through defender's negligence, was thrown down by the motion of the train, which had commenced backing, and received severe personal injuries; to recover damages for which this action was brought.

The answer denies these allegations. A considerable amount of evidence was introduced by both parties as to the length of time which elapsed after the arrival of the train before it commenced backing, and as to whether the usual signals were given. The defendant’s evidence tended to show that the train did not commence backing until at least twenty-five minutes after its arrival.

The court gave the jury the instructions recited in the opin*345ion; and also instructed them tbat if tbe plaintiff did not use ordinary care and prudence, or if sbe was guilty of any negligence wbicb tended to produce tbe injury, or if sbe bad not' shown affirmatively tbat it occurred through defendant’s negligence and without fault on her part, sbe could not recover. Tbe court refused to instruct them (2.) Tbat if tbe relation of common carrier bad ceased, defendant was liable only for want of common care; or (3.) Tbat if tbe train bad stopped a reasonable time to enable all tbe passengers to get off, and plaintiff remained in tbe car, and afterwards received tbe injury from attempting to get off while tbe train was in motion, sbe could not recover; or (4.) Tbat if, after arriving at tbe end of tbe route, and after tbe other passengers bad left tbe train, sbe remained for twenty minutes, this, unexplained, was evidence of a want of ordinary care on her part. Tbe court then gave tbe jury a general oral charge, tbe substance of wbicb was as follows : Tbat tbe two questions to be determined by them were, 1. "Whether tbe plaintiff was, at tbe time of tbe accident, a passenger on defendant’s cars. 2. Whether sbe was injured solely by defendant’s negligence, as alleged. “ As this contract is of such a responsible character, tbe passenger cannot prolong it after it has been performed, -without tbe consent of tbe carrier. Having reached tbe place of destination, bis liability as earner ceases after a reasonable time has elapsed for passengers to leave tbe train. In this case it is sought to charge tbe defendant as a common carrier. I therefore refuse to give tbe second and third instructions asked by tbe defendant, because I deem them inapplicable to tbe case. They go upon tbe supposition tbat tbe plaintiff bad ceased to be a passenger at tbe time of tbe accident, and I am of opinion tbat in tbat case sbe could not recover at all *under her*complaint, whether tbe defendant was guilty of negligence or not. * * * You may consider all tbe evidence in tbe case., all tbe circumstances testified to (as tbe time and place, and tbe situation of tbe plaintiff and her family), and determine whether tbe time tbat elapsed from *346the arrival of tbe train at Milwaukee to tbe time tbe plaintiff was injured, was more than a reasonable time for her to get out of tbe train; and if so, tben she bad in law ceased to be a passenger, and defendant is not liable.”

Verdict for plaintiff; motion for a new trial overruled; and defendant appeals from a judgment upon tbe verdict.

*Brown &*Pratt, for ajipellant.

*F. Fox*Goolc, *with Joshua /Stark*of counsel, for respondent.*

*

 In the elaborate briefs submitted by the respectiye counsel, the precise point on which the decision in this court finally turned, does not appear to be distinctly discussed. To the point that particular instructions are to be understood in the light of the evidence *and of the general chm'ge,*Mr. Stark cited 32 N. Y., 561, *479.*

Downer, J.

At tbe trial, tbe following instructions given to tbe jmy at tbe request of tbe respondent’s counsel were excepted to by tbe appellant: “1. If both parties were guilty of negligence, and tbe negligence of eacb party was tbe proximate cause of tbe injury, tbe plaintiff cannot recover; but if tbe negligence of tbe railroad company, tbe defendant, was proximate — that is, negligence occurring at tbe time tbe injury happened — and tbat of tbe plaintiff was remote, tben tbe plaintiff may recover. 2. If tbe jury find from tbe evidence, tbat ordinary and reasonable care and attention to tbe safety of tbe passengers on tbe train arriving' in Milwaukee at one o’clock in tbe morning, requned tbat, before backing up tbe train and putting it away, tbe company should see to it by examination of tbe passenger cars, tbat tbe passengers were all out, and tbat this was not done on tbe night when tbe plaintiff was injured, tben tbe defendant was guilty of negligence; and if tbe injury to tbe plaintiff was occasioned by backing tbe train without such examination and care, tbe defendant is liable, unless tbe jmy should also find tbat tbe plaintiff also was guilty of negligence, which contributed to produce tbe injury.”

Eacb of these instructions assumes tbat at tbe time of tbe accident tbe contract of common carrier between tbe plaintiff *347and defendant was in force. Whether it was ox not, was a severely contested point. It is error for tbe court to assume a fact wbicb tbe jury ought to determine. It is true, tbe court afterwards, wben asked by tbe defendant’s counsel, instructed tbe jury, “That if tbe jury believe from tbe evidence that tbe train bad arrived at tbe end of tbe route, and that a reasonable time bad elapsed for tbe plaintiff to get out of tbe cars, after tbeir arrival, before tbe injury to tbe plaintiff occurred, then tbe relation of common carrier between tbe parties bad ceased, and tbe defendant cannot be held liable for tbe injury as a common carrier of passengers.” Tbe giving of this instruction did not cure tbe error in the others. Where erroneous instructions are given for one party, tbe error is not corrected by giving for tbe other party instructions explanatory inconsistent with, or contradictory to, those first given. Tbe erroneous instructions should be withdrawn from tbe jury. *Jones v. Talbot,*4 Mo., 279; *Hickman v. Griffin,*6 Mo., 37; *Clay v. Miller,*3 Mon., 146. There may be an exception to this rule, where it is clear to tbe court that tbe erroneous instruction did not mislead tbe WW-

But in this case, tbe erroneous instructions being given, tbe jury might have considered tbe first, and if they found those facts on tbe finding of wbicb they were told by that instruction tbe plaintiff was entitled to recover, they might well have concluded they were not bound to examine further, except as to tbe amount of damages. Tbe same may be said of tbe second instruction given; for each professes to give all tbe facts necessary for tbe juiy to find to entitle tbe plaintiff to recover. And all such facts should be stated in every hypothetical instruction, wbicb disposes of tbe entire case in favor of one party or tbe other. For tbe error in such instruction is not ordinarily corrected by giving other instructions based upon tbe omitted facts. According to tbe instructions in this case, if tbe jury bad found tbe facts set out in either of tbe plaintiff’s instructions they must find for him; and if they found tbe facts *348stated in tbe instruction given at tbe request of tbe defendant, they must find for bim. They might have found from the evidence tbe facts mentioned in all three of tbe instructions. It is obvious tbe two first instructions tended to mislead tbe jury, and to divert their attention from some of tbe facts on which their verdict ought to rest. And for this reason tbe judgment of tbe circuit court must be reversed.

We say nothing of the many other points raised in this case, as tbe testimony on a new trial may be somewhat different, except to remark that it appears to us that when the train arrived at Milwaukee, and tbe plaintiff knew it, and a reasonable time bad elapsed thereafter for her to get off the cars, the relation of common carrier ceased; and a reasonable time is tbe time within which persons of ordinary care and prudence, under like circumstances, get off tbe cars.

*By the Court*— The order of the circuit court is reversed, and a *venire de novo*awarded.