The Evansville journal. [volume] (Evansville, Ind.) 1866-1870, 1868-02-28

excitement and haste about 4isem.
barking, as the train was behind time
The bell was ringing as signal to &c,
out, and it was understood that pas.
sengers for that-statian- must .get@oRt
quickly orsthey would be carried on
She thought the car was too high Il
jump frOm-was warned not to jump
but nevertheless did so. No proper
provision wasnmade for passengers To
get out of the box cars The oBly
evidence in relation TO command by
the conductor toget -out was, that he
said, all of for Fort Braneh.s II
you do not get off you will be
taken to Evansville. = a0It The
conductor testifying as a witness, de-
MES having used any such language.
The occurrence took place on the
Fourth of July. The defendant was
provided with sufficient pass engeF
coaches for all ordinary business, but
not enough for such an occasiong and
hence used freight cars. There were
celebrations at Fort Branch and
Evansville, and there was an unusual
number of passengers.
The court gave to the jury the fob
lowing instruction, claimed by the ap-
pellant to be erroneous. If the jury
finds there was mo want of proper
skill, or care, or caution, on the
part Of the defendant or agent,
and that the injury was caUs-
ed by the act of the plaintiff,
In rashly1 and improperly springing
from the car, then tie defendant is
not liable IN this action. But if the
want of proper skill and care of the
conductor, or other person ia charge
Of the trainf or if he was guilty OF
rashness, negligence or misconduct,
which placed the passengers In a state
OF peril in descending from the car,
the defendants are liable for any in
jury resulting from his acts, and the
plaintiff is entitled to recover" 1t
must be stated In this connection,
that the jury was also instructed that
if the plaintiff was guilty OF negligence
in jumping from the car, whereby she
was injured, then the verdict
should be for the defendant, even
if the defendant was also guilty
of negligence. While the In
struetion complained Of was defective
standing alone, yet that defect was
fully supplied in the additional I'M
struction stated, and we cansot sup.
pose that the jury disregarded the
latter. etslH ~ p ,
The appellant complains also of
the refusal of the Court to instruct
the jury as follows: 5J f-m lad
" If the jury believe, from the evil
dence, that the cars. platforms, aud
means of descent provided by the de-
iendant were at the time sufficient for
the ordinary travel on the road then
there would be no negligence in not
providing means and platforms for the
of an unusual num-
Der of passengers. unless it appears
that reasonable notice had been given
to provide such accommodations i
We do not think that this instruc-
tion should have been given. The
defendant was not bound to receive
an unusual and unexpected number
of passengers, beyond what it was
bound to provide for with safe accom-
mOdations. Having received them
without qualification or condition, or
notice of its inability to provide for
their safety, it seems to us. that it as
sumed all the obligations usually in
cumbent upon a carrier of passe Bgers,
and became liable for the conse-,
quences of a failure to perform these
obligations. The following was also
refused: IF the jury find. from the
evidence, that the defendant leaped
from the car without being in peril of
life or limb, or having reason to
believe she was in such peril, and by
so leaping received the injury, then
the verdict should be for the defend
ant" We cannot say that it was
error to refuse this instruction In this
particular case. If the evidence had
shown a leapiug from a train when in
rapid motion, or if the case put by
the instruction had included the
element that the plaintiff had
leaped from the car under such
circumstances that peril to her
self might reasonably be appre-
hended In consequence OF the
leap then to make the leap
would be a want of reasonable care
on her part, and she could not recov-
er. The instruction, however, as
sumes that leaping from a car under
any circumstances, without a purpose
to avoid thereby an apprehended
peril to life or limb, would relieve the
carrier from liability. We do not so
understand the law. III the leap was
made under such. circumstances that
a person of ordinary caution and care
would not have apprehended danger
therefrom, then it was not such an
act of carelessness as would relieve
the defendant from the responsibility
otherwise resting upon 1T.
Lastly-it is commended that the
evidence was not sufficient to support
the verdict. -
There never should be any just oo-
aaciou 60 ~ v.,,,o--,l ~ N I'D 0uaork