#### St. Louis, Iron Mountain & Southern Railway Company v. Duffey.

Opinion delivered February 21, 1916.

1. CARREERS — INJUEY TO PASSENGER — THREAT OF ARREST — JUMPING FROM moving train. — The operatives on defendant’s train threatened to arrest .plaintiff for an alleged violation oif the law, when the train reached a .certain city, the defendant will not be liable for injuries received by plaintiff, where he jumped from the same while the same was going so fast that an ordinarily prudent person would not attempt to alight therefrom.

2. .Carriers — alighting fbom moving train — contributory negligence. — Unless the danger of alighting from a moving train is obvious, a passenger .will he justified in relying upon 'the direction of those in charge of. the train to alight, to the extent that he will not he guilty of contributory negligence as a matter o.f law.

3-. CABRIEBS THREAT — ALIGHTING FROM MOVING TRAIN. — iSbme fOTCe Or •threat of “bodily harm, or effort to eject a passenger must have ¡been used before a passenger is justified in attempting to alight ■from a rapidly moving train.

4. Carriers — injury to passenger leaving a moving train — threat of arrest. — A mere threat ¡by train officials, not accompanied by force, or by a threat .of immediate bodily harm, to have plaintiff, a passenger, arrested upon reaching a certain city, will not justify plaintiff ¡in jumping from a rapidly moving train.

6. ¡Carriers — injury to passenger — leaving moving train — threats of officials of defendant. — In order to justify a passenger in attempting to leave a rapidly moving train, on account of threats made by officials of defendant railway, there must be some show of force, threat of bodily harm, threat to eject him, or some overbearing Intimidation.

Appeal from Miller Circuit Court; George B. Eaynie, Judge;

reversed.

STATEMENT BY THE COURT.

Tbomas Duffey sued tbe St. Louis, Iron Mountain & ¡Southern Railway ¡Company to recover damages sustained by him while a passenger on one of defendant’s passenger trains,,alleging that bis injuries were caused by tbe negligence of the defendant and its servants. The plaintiff was a witness for himself and testified.substantially as follows:

I am thirty-one years of age and have lived in Hemp-stead ¡County, about thirteen miles from the town of Ful*430ton, all of my life. On the morning I was injured, Wade Cheatham and I came to Fulton and hoarded the fast mail train of the defendant for the purpose of going to Texarkana. The train did not stop between Fulton and Texarkana. We were going to Texarkana to look for some cattle which had been stolen from me. I had a pistol in my pocket and had been told by the constable of my township that I had a right to carry it under the circumstances. Wade Cheatham had a bottle of whiskey in his pocket. When we got on the train we went into the toilet. Wade Cheatham then put his bottle of whiskey down on the floor but we had not drunk any of it after getting on the train. The auditor came into the toilet and demanded our tickets. He saw the bottle of whiskey and demanded that also. Wade Cheatham gave him the bottle of whiskey and he started out with it and threatened to have us arrested if "we did not get off the train. He asked us if we did not know that it was a violation of the law to drink whiskey on the train. We told him that we had not been drinking it and he replied that it did not make any difference and that he would have us arrested in Texarkana, if we did not get off the train. Later on the auditor came into the coach where we were sitting. He had a pistol. The conductor and train porter were also there. They passed the pistol around among themselves and looked at us in a significant manner. Both Wade Cheatham and I went to different ones of the trainmen and told them our business at Texarkana, and tried to persuade them not to have us arrested. They insisted, however, that they would have us arrested if we did not get off the train before it arrived at Texarkana. They said they would slow the train down so we could get off. Finally the train porter came and hotified us that the train had slowed down and that it was time for us to get off. The train was just getting into Texarkana. I was frightened and followed the porter out of the coach and got down on the steps of the car. The vestibule door had been opened before I got out there. I stood a few minutes on the second step and looked out. The train was running too fast for me to get off. I thought I would go back into *431the car but the man who took up our tickets came out there and placed his foot in my way. I was afraid to pass him and stood there on the step. I looked out to see a street car which was approaching and that is the last thing I remember. I believe I was knocked or pushed off the car. I did not recover my senses until about a week afterwards.

The plaintiff was severely injured and described the character and extent of his injuries. His testimony, in all essential respects, was corroborated by that of Wade Cheatham.

The train auditor admitted that he took the whiskey away from the negroes and threatened to have them arrested when the train arrived at Texarkana. He gave the bottle of whiskey to the conductor and he threw it out of the train.

The conductor and auditor were both old employees of the railroad company and denied that they had any altercation whatever with the plaintiff. They denied that they exhibited a pistol in his presence or that they even had a pistol. They said that they did not in any way intimidate him or try to force him to leave the train, and that they did not know that he was injured until after the train had arrived at Texarkana and they had left the station. They said they opened the vestibule doors as they approached Texarkana in accordance with their custom in order to enable passengers to alight as soon as the train stopped.

The train porter corroborated the testimony of the conductor and auditor. He denied that he told the plaintiff to leave the train and denied that he had any knowledge that he had done so until after he was injured.

Other witnesses who lived along the right-of-way in Texarkana testified for the railroad company and said that they saw the plaintiff standing on the lower step of the coach as if he were preparing to jump off the train. They testified that the vestibule doors were open on both sides and that they could not see anyone else on the step or near it.

*432The jury returned a verdict for the plaintiff and the defendant has appealed.

E. B. Kinsworthy and R. E. Wiley, for appellant.

I. It was error to refuse defendant’s requests for instructions Nos. 11, 12 and 13. A mere threat to have a passenger arrested for alleged misdemeanor would not justify a passenger in exposing himself to obvious danger. The threat is not the proximate cause. 80 S. W. 121; 8 Am. St. 497; 57 Mo. App. 147; 14 L. R. A. 613; 30 S. W. 170; 55 Ark. 248; 57 Am. Rep. 114. It was negligence per se to alight from a train running from twelve to eighteen miles per hour. 58 Ark. 397; 45 Id. 256; 11 S. W. 212; 99 Id. 248; 83 Fed. 58; 37 L. R. A. (N. S.) 43 and note. There must be well grounded or reasonable apprehension of immediate impending danger. 55 Ark. 248-255; 14 L. R. A. 613; 37 L. R. A. (N. S.) 758, note; 80S. W. 121; 67 Ark. 209; 1 Stark (Ky.) 493; 13 Pet. 181; 1 S. W. 493.

Plaintiff’s instruction No. 1 was error. 80 S. W. 121, 123. There was no evidence of violence on part of the aüditor.

3. No negligence was shown on part of defendant. 11 S. W. 212. Plaintiff was guilty of the only negligence. 20 L. R. A. (N .S.) 1123; 30 S. W. 170; 1 S. W. 493; 100 Pao. 641; 62 Am. Dec. 325. A verdict should have been directed for defendant.

4. There was reversible error in the argument of counsel. 87 Mo. 74; 71 Ark. 427; 65 Id. 619-626; 70 Id. 305.

J. M. Garter, for appellee.

1. There was nothing appellant was entitled to have said to the jury in the requests asked that was not given in the instructions for appellee, or in other instructions for appellant.

2. There' is no error in instruction 1 for appellee and the testimony fully supports the verdict. 118 Ark. 39.

3. No prejudice resulted from the remarks of counsel. But if the remark was prejudicial it was invited *433error. Besides the emphatic rebuke by the court and the withdrawal of the statement cured any prejudice.

Hart, J.,

(after stating the facts). (1) Counsel for the defendant assigns as error the action of the court in refusing to give instruction No. 13. The instruction is as follows:

> “If you 'believe plaintiff jumped from the moving train because defendant’s train operatives threatened to have him arrested when he got to Texarkana, and further believe that the train was at the time he jumped off, going too fast for an ordinary prudent person to alight therefrom, in safety, your verdict should be for the defendant.”

(2) We think the court should have given the instruction. Unless the danger of alighting from a moving train is obvious, a passenger will be justified in relying upon the direction of those in charge of the train to do so, to the extent that he will not be guilty of contributory negligence as a matter of law.

(3) It is equally well settled that some force or threat of bodily harm or effort to eject a passenger must have been used before a passenger is justified in attempting to alight from a rapidly moving train. In the case of Little Rock & Ft. Smith Ry. Co. v. Atkins, 46 Ark. 423, the court said:

> “Whether it was culpable or excusable, depends on the rapidity of the motion, the fact whether it is day or night, the distance from the car to the ground or other surface upon which the passenger proposes to alight, the age and vigor of the party, and whether he takes the risk by the command or encouragement of the company’s agents in charge of the train, or to escape a greater peril.”

In the case of Sibley, Receiver, et al. v. Smith, 46 Ark. 275, the plaintiff claimed that he had been compelled by threats and intimidation on tlie part of the conductor to jump off a moving train. The principal question was as to the right to compel a personal examination of the plaintiff as to his personal injuries. The court reversed the *434judgment because the injuries were of a permanent nature and the lower court refused to compel the plaintiff to submit to a medical examination. On the question now under consideration, the court said:

> “It was not disputed that the plaintiff leaped from the train while it was in rapid motion. The court referred it to the jury, under appropriate instructions, to say whether he acted voluntarily, or from a fear, generated by the conduct of the conductor, that worse consequence might befall him if he attempted to remain in the car.”

In the case of St. Louis, I. M. & S. Ry. Co. v. Rosenberry, 45 Ark. 256, the plaintiff claimed that he was induced to jump from the train by the threats of the conductor to eject him, accompanied by a show of force. There the court said: “To be forcibly ejected from a moving train would, obviously, be attended with more danger than to leap from it, and if the appellee had been justified in the belief that he would be ejected if he did not go voluntarily or without force, no blame could be attached to his conduct. In such case the railroad, being the author of the original peril, would be answerable for the consequences.”

(4) It follows from the principles announced in these opinions that the mere threat on the part of the train officials to have the plaintiff arrested when the train arrived at Texarkana was not enough to justify plaintiff in leaving the rapidly moving train. The mere threat to have him arrested, not accompanied by force or by a threat of immediate bodily harm, was not enough. The dictates of ordinary prudence are not to be disregarded and a mere threat of arrest, by whomsoever uttered, did not justify the plaintiff in incurring an obvious risk. The refusal of the court to give the instruction touching this phase of the case was prejudicial error.

The plaintiff testified that the train auditor threatened to have him and his companion arrested as soon as he discovered that they had a bottle of whiskey. The train auditor admitted this fact. It was also shown that the plaintiff had a pistol in his pocket, and it was the *435theory of the railroad company that he was afraid he would be arrested for carrying a pistol and for that reason jumped off the train while it was moving rapidly. We think the railroad company had a right to have its contention presented to the jury in a concrete form. This is especially true when we consider that the instructions given at the request of the plaintiff were of a general character. The instruction given’ at the request of the plaintiff upon which he predicated his right to recover is as follows:

> “If you find from a preponderance of the evidence that plaintiff was a passenger on one of defendant’s trains, and that by reason of threats or any intimidation whatever the servants or any servant of the defendants engaged in the operation of the train so alarmed or terrified plaintiff as to induce him to put himself in a place of danger while the train was in rapid motion, and while in such place he was pushed or knocked off the train by any of said servants or while so there in the exercise of ordinary, care for his own safety, he was jolted off by the movements of the train and injured, then you will find for the plaintiff. ’ ’

(5) It will be observed that the instruction is of a very general character and allows the plaintiff to recover if he put ‘himself in a place of danger while the train was in rapid motion by reason of threats or any intimidation whatever. The plaintiff would not be justified in leaving a rapidly moving train by reason of a threat to have 'him arrested or even by the mere command of those in charge of the train. There must be some show of force,. threat of bodily harm, threat to eject him, or some overbearing intimidation in order to make the company liable where the danger is evident.

Of course, as we have already seen, a passenger will be justified in relying upon the direction or command of those in charge of the train to alight from a slowly moving train while it is in motion, unless the danger of doing so is obvious. The reason for this is that the passenger has a right to rely upon the superior knowledge of the trainmen.

*436It is also earnestly insisted that there was no evidence to support the verdict. We are of the opinion, however, that the evidence of the plaintiff, if believed by the jury, was sufficient evidence to warrant the verdict.

For the error in refusing instruction No. 13, as requested by the defendant, the judgment must be reversed and the cause remanded for a new trial.