P9L > APPELLANT' *Feb. COMPANY (DEFENDANT) ........
J
*Mar. 3. AND
WILLIAM HOWARD HAY (PLAIN- RESPONDENT. T IFF) .... .... ....
..... ... .. . I
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN.
Railway - Liability - Injury to passenger - Negligence - Moving ANGLIN J.-The proper conclusion from the plaintiff's own evidence, in my opinion, is that lie assented to a suggestion of the brakesman that instead of the train being stopped at Cardell (a flag station and not the destination for which he had bought his ticket), to let him off, it should be slowed down and he might jump off. His story is that he asked the brakesman if he would stop the train at Cardell to let him off and when the brakesman replied that he would not but that he would slow up the train and the plaintiff could jump off, he, the plaintiff, answered "all right."
He adds that he was prepared to do that and elsewhere he says that he did not want to insist on the train stopping, as he knew he was entitled to, because he "thought it would be all right."
Upon such a state of facts I find it extremely difficult to hold that there was any breach of duty or negligence imputable to the defendant company. think there was not.
But assuming that there was breach of duty on the part of the brakesman for which the defendant should be held responsible in failing to stop the train at Cardell to permit the plaintiff to alight, his act in knowingly jumping from the moving train, even if running only at 8 or 10 miles an hour, as he says it was (other witnesses place its speed at from 12 to 22 miles per hour), was not thereby excused.
He certainly assumed the risk of being injured in doing so. Although by no means of the opinion that the mere fact of stepping or jumping off a train in motion is always to be regarded as contributory negligence per se, under the circumstances of this case I am satisfied that the plaintiff's admitted act amounted to such negligenceif indeed it was not the sole negligence-and his recovery is thereby debarred.
The appeal should be allowed and the judgment dismissing the action restored with costs here and in the Court of Appeal, if the defendant should see fit to ask them.
BRODEUR J.-I concur with my brother Anglin. J.-I concur with my brother Anglin. Appeal allowed with costs.