The opinion
Miller, Judge,
(dissenting) :
I must decline to concur in the opinion of the court in this case. I do not see how there can be two opinions about the question of fact that decedent was guilty of the grossest negligence and disregard for his own safety, in attempting to alight from the end of the coach where the vestibule doors were closed against him, and by undertaking to leave by the end sill of the tender, a method so manifestly dangerous and unusual as to warn any reasonable man of the great danger in doing so. When he entered, he took a seat near the door, and when the train stopped it took him but a second to discover that that door was closed, which' was notice to him not to attempt to leave by that way. No other passenger undertook to do so. Every other passenger destined for Sattes moved in the direction of the rear door of the coach. A passenger who had gone out by the rear door and walked the entire length of the coach saw decedent in the act of trying to open the front door. How long he continued in this before taking his position, on the end sill of the tender does not appear. Although the evidence tended to show a car more or less crowded, all got safely to the platform uninjured, except decedent.
The main act of negligence alleged and relied on, was the alleged failure of defendant to stop its train long enough for passengers to alight at Sattes. No trainman saw the decedent in his place of danger. Enough time elapsed for him to get out there in the dark, with no light to guide him, for one witness says he called to him to use a flash light upon him to enable him to see. Assuming that defendant was *598 negligent' in not making a longer stop, that fact did not justify the decedent in attempting to leave the coach by a way he knew had been closed against him. It was unnecessary for him to take this desperate chance. The fact that some passengers may have been seen jumping off the rear end of the coach when it passed the place where the front end had stood, argues little. It is most improbable, and no witness swears that the signal to go was given the engineer while passengers were still in the act of alighting from the train at the place where they were invited to alight. If any alighted aftei”wards, they had loitered or been slow in leaving the train. In Simmons v. Seaboard Air-Line Railway, 120 Ga. 225 , it was decided, opinion by Lamar, Judge, afterwards an associate justice of the Supreme Court of the United States, that if a person voluntarily assumes a risk, accompanied by some supposed negligence of the carrier, such conduct on his part is not merely contributory negligence, lessening the amount of damages, but a failure to avoid danger, defeating his right to recover anything. In this case Justice Lamar held that, if one has a “clear chance” to avoid a danger, which the evidence in this case shows decedent appreciated, and chooses not to do so, but to risk it, his negligence, not that of defendant, becomes the proximate cause of his injuries, and will defeat any recovery. The doctrine of the Georgia case is settled law everywhere. See 2 Shearman & Redfield on Negligence, (6th ed.), §519 et seq., and illustrative cases cited.
The liability of a carrier is always conditioned upon the exercise by the passenger of reasonable and proper care and caution for his own safety. Baltimore and Potomac Railroad Company v. Jones, 95 U. S. 439 . Does it need argument to show that Meador was lacking in this particular, when he chose the most dangerous method of alighting from the coach ? One or two of the counts in the declaration undertook to excuse his negligence by averring that he was old and deaf and that his eye sight was bad; but on the trial this theory was abandoned, and as some justification for his foolhardy act, evidence was introduced as tending to show that though ho had passed beyond the time ordinarily allotted to man to live, *599 Meador was possessed of all his facilities, was agile and active, and therefore was justified in taking the hazardous choice of going out of the car over the end sill of the tender. In the case of Railroad Co. v. Jones, supra, it is held that a passenger will not be justified in taking such a risk, even though he may be invited by the trainman to do so; that in such case his injury must be ascribed to his own recklessness and folly. I see little room for distinguishing this case from Hoylman v. K. & M. Ry. Co., 65 W. Va. 264 . The mere scintilla of evidence that the railroad company had suffered passengers to leave the train by unusual avenues, as windows, furnished no excuse for passengers to, risk their lives in doing so when whoEy unwarranted, so as to carry the ease to the jury on the question of contributory negligence. Dye v. Corbin, 59 W. Va. 266 ; Ketterman v. Dry Fork R. R. Co., 48 W. Va. 606, 614-615 . In Wenzel, Admr. v. City & Elm Grove R. R. Co., 64 W. Va. 310 , we affirmed the judgment below ex: eluding plaintiff’s evidence and directing a verdict, where a passenger was seated on the floor of an electric ear with his feet on the running board, and was thrown off the ear when running at a rapid rate when turning a curve, such running of the car not of itself showing negligence justifying a verdict against the railroad company. In Lowry v. Balto. & Ohio R. R. Co., 74 W. Va. 791 , we affirmed the judgment below sustaining defendant’s demurrer to plaintiff’s evidence, where plaintiff undertook in the daytime to alight from the end of the coach where no platform was provided, instead of the place where the other passengers were invited to alight; this upon the principle that it is the duty of a passenger to use his senses and use the way provided for alighting, and not to attempt to alight by ways obviously dangerous. In that case we cited with approval Norfolk & Western Railway Co. v. Hawkes, 102 Va. 452 , holding that the law imposes no such obligation on railways to one injured by his own negligence, against which common prudence would have protected him, and that it was immaterial that he thought he was in a place of safety.
I do not find it convenient to elaborate an opinion on the subject, and besides, a dissenting opinion is' generally a work *600 of supererogation and quite uninteresting; but this much I feel constrained to say in protest against the decision. I think the judgment below was clearly right and ought to be affirmed.