Rufus Wheeler Peckham

“ The act of jumping under such circumstances cannot, with any regard to common sense, be regarded as of the same obviously dangerous character, and to as great an extent, as that of riding on the pilot of an engine. If plaintiff reasonably though he could with safety obey the order by taking care and jumping carefully, and if, because of the order, he did jump, the jury ought to be at liberty to say whether, under such circumstances, he was or was not guilty of negligence. ”

“ The trial judge, after the refusal to charge as requested by the defendant, did charge, among other things, as follows:
'I instruct you that to jump off a railroad train moving at a rate of speed of four or five miles an hour is presumably a negligent act per se, and that in order to rebut this presumption of negligence, and recover for an injury sustained from so jumping, the plaintiff must satisfy you that he was ordered and directed to do so by the conductor Potter, and he must do that by a preponderance of evidence. Plaintiff admits the jumping, and he attempts to excuse the act ”

“ If the train had been going at the rate of 30 or even 15, miles per hour, the chance of injury resulting from a jump would have been so great that plaintiff would probably have obeyed such an order at his own risk. We think a speed of 4 miles an hour, considering all the facts hereinabove detailed, and including the direction to jump, left the question of contributory negligence one for the jury. ”