It was sought to distinguish the case at bar from Hay v. C.P.R. on the ground that the plaintiff in the Hay Case had the advantage of daylight and could see how fast the train was going, whereas in the present case, owing to the fact that it was dark, the plaintiff could not judge of the speed of the train, and that he thought the brakesman would know better than himself whether or not he could jump off with safety. In my opinion the’two cases are indistinguishable. Although the night was dark, and the plaintiff probably could not estimate the speed of the train as accurately as in daytime, he knew the train had attained some considerable speed, and knew that it was dangerous to get off a moving train. This he admitted. He also admitted that the danger would be increased on account of darkness. Being thus well aware of the danger, he chose to take a chance that he could jump without injury.
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