Waniorek

The action was for damages for personal injuries and defendant had the verdict. Plaintiff appeals from the order denying his motion for a new trial. • The facts deemed essential for a proper understanding of the case will appear as we proceed.

Among the instructions requested by plaintiff and refused by the court was the following: “If you believe from the evidence that on the twelfth day of February, 1903, and while plaintiff was being transported as a passenger on said car of said defendant, as alleged in plaintiff’s complaint, by reason of the negligence of the defendant, the controller on said car blew up or caught fire, and that the blowing up or catching on fire of said controller created in the mind of said plaintiff a reasonable apprehension of great peril or injury, and that by reason thereof, and in order to avoid such anticipated peril or injury, plaintiff jumped from said car, while said car was in motion, sustaining the injuries complained of, and that an ordinarily prudent and cautious person, under like conditions and circumstances, would- have jumped off and from said car, then I instruct you that under such circumstances plaintiff was not guilty of contributory…