Browne v. Raleigh & G.R. Co.

• Citation: 12 S.E. 958,108 N.C. 34
• Parties: BROWNE v. RALEIGH & G. R. Co.
• Decision Date: 10 March 1891
• Court: United States State Supreme Court of North Carolina

12 S.E. 958

108 N.C. 34

BROWNE v. RALEIGH & G. R. Co.

Supreme Court of North Carolina

March 10, 1891

This was a civil action, brought to recover damages for an injury received while getting on defendant's train, tried at the September term, 1890, of the superior court of Warren county before WHITAKER, J. The following is the whole of the evidence:

Where the conductor of a freight train has ordered a passenger to go to a coach attached to the train, and get in it, and then signals the engineer to start the train, without waiting to see whether the passenger had gotten on, the company is not liable for injuries received by him in trying to get on the car in motion, where the train had already been stopped a reasonable time, and the passenger had willfully delayed to get on it.

Faulcon Browne, the plaintiff, as witness in his own behalf testified as follows: "Was at Macon depot on or about the 25th of November, 1889. I purchased a ticket from Macon to Vaughan railroad station from Rodwell, agent of the defendant. In a few minutes the local freight came to Macon. Rodwell asked me if I was going off on that train, and I told him I was. He said to me that I had better get on; that the train would leave pretty soon. I asked Rodwell if it was not the duty of the company to pull the passenger coach to the platform. The conductor, Lassiter, said, if I rode on that train at all, I would have to go where the passenger coach was then standing, and get on, or I would be left. Then the conductor goes to the passenger coach, and waved his engineer to go ahead. When I reached the coach it was slowly moving. After stepping on the coach, and having a good footing, the sudden jerk of the train, with the weight of a valise in my right hand, threw me off my balance, and caused my injury. I struck my leg against some part of the car-step. The jerk of the train was caused by the engineer's putting on steam. I was incapacitated from my business for about five months. The wound was about the size of a silver dollar on the front of the right leg. Dr. Mark Perry attended me, and I had nurses besides my wife. I was then engaged in farming and merchandising, and my time was worth fifty dollars a month. I have not yet recovered from the wound. It still causes me dull, grinding pains through the wound, and sharp, shooting pains. The wound inflamed and discharged a half gallon, at least, of matter. This wound caused an abcess on the opposite side of the leg, which was painful and discharged matter, and particles of bone passed through this abcess. This healed over in about five months, but lacks a considerable of being well now. The scar has a bluish color. The ulcer on the back of the leg was the size of a half dollar. I am 35 years old am married, with a family of six. I was at the time of the accident perfectly sober. Cross-Examined. I had ridden on that train occasionally before. I had taken about one ounce of whisky, or two drinks. I wrote Capt. Smith, superintendent of defendant, a letter about this accident. The witness identifies the letter, which is as follows: 'Vaughan, N C., Nov. 27th, 1889. William Smith, Esq., Superintendent R. & G. R. R., Raleigh, N. C.-Dear Sir: Your conductor Lassiter treated me with utmost of contempt at Macon, N. C., on the 26th inst. He refused to pull up his train for me to get on and I had to jump it at the risk of my life, and hurt my leg badly in doing so. Please excuse me for writing, but I feel it my duty. I have been a patron of the road for twenty years; have furnished thousands of ties and hundreds of cords of wood, and am still patronizing the company; and yet I must be treated as a negro, after buying a ticket for my station, and asking your man to pull up for me. Very respectfully, [Signed] F. BROWNE. P. S. If he is not discharged, I will sue the company for damages. [Signed] F. BROWNE.' I had conversation with several parties, in which I said if the defendant company would discharge Lassiter, the conductor, I would not sue; but after I had knowledge of the extent of my injury I would have sued if it had been my last breath. I went to see Doctor Perry once in eight or ten days, up to March court, 1890, and followed his prescriptions. I don't recollect Doctor Perry telling me if I didn't stop drinking whisky I could not get well. I don't think Doctor Perry did tell me to take rest. I walked about with the aid of a stick. The coach was barely moving. I didn't think there was any danger. I knew that if a man jumped on a moving train it was at the risk of his life."

Robert Fisher, a witness for the plaintiff, testified: "I was at Macon depot on the day the injury occurred. I saw the conductor, agent, and plaintiff, and heard conversation between depot agent and plaintiff. Rodwell, the agent, said to plaintiff, 'Are you going down on this train?' Plaintiff said, 'Yes.' Rodwell said, 'You had better be getting on, as it is going away.' Plaintiff said to Agent Rodwell that he thought that it was the duty of the company to pull the passenger coach up to the depot; that he did not feel disposed to walk fifty or a hundred yards to get on the coach in the mud. The conductor, being present, said to the plaintiff: 'If you are going on this train, you had better go ahead and get on. We are going away.' Plaintiff started up the track to the coach, and when he was in two or three cars of the passenger coach the conductor waved the engineer ahead, and signaled him to go away. The conductor got on the train while it was moving. When the plaintiff got on the passenger coach the train had moved the length of two or three cars. The conductor got on the rear end of the coach, and he was not hurt. I saw the plaintiff at the time he stepped on the coach. The engine at this time gave a sudden jerk, and increased its speed. I saw plaintiff get on the train, and the train go to the next station. The passenger coach was 75 or 100 yards from the passenger station. I do not know whether or not the plaintiff was injured. I saw him next day at his home, about a mile from Vaughan station. I saw his leg. There was a skinned place on the front of it. I saw him after this every week, and sometimes two or three times a week. He was lame from the wound four or five months. During the five months following the day I saw plaintiff at Macon depot there was a sore on the front of his leg and one on the calf. The one on the calf of the leg was discharging matter. This was in March. His leg was paining him right much. I took off the bandage, and washed the wound, and a piece of bone came from it. The plaintiff was in bed. Cross-Examined. Don't know how many cars were in the train that day. The passenger platform and freight platform are on opposite sides of the track. I can't tell how far the passenger coach was from the passenger platform."

John Harris, a witness for the plaintiff, testified: "I was at Macon the day of the occurrence. Saw the conductor and the agent of the defendant company. Plaintiff told the conductor he wanted to go to Vaughan station on the freight. The conductor told the plaintiff that he was a little behind, and to go back and get on the coach. Plaintiff made for the coach. I did not see him get on the coach. The passenger coach was fifty or sixty yards from the passenger platform. It was a long train, the local freight." It was admitted that the train was a mixed one, with passenger coach attached.

Fred Yancey, a witness for the plaintiff, testified: "I was at Macon depot the time plaintiff was injured. I saw the plaintiff there, and heard the conductor tell the plaintiff if he was going it was time he was getting on the car. The plaintiff asked if the passenger coach was coming any nearer. The conductor told him, 'No.' The plaintiff went towards the passenger coach, but I did not see him get on. He had gotten within two or three carlengths of the passenger coach when the train began to move. Cross-Examination. I don't know who else was present when the conversation took place with the plaintiff."

Dr P.J. Macon, a witness for the plaintiff, testified, (the witness was admitted to be an expert:) "I have heard the testimony of the witnesses as to the size, appearance, and duration of the injury to the plaintiff, and of the ulcer which appeared shortly after. On yesterday I made a personal examination of the plaintiff's wound. The present appearance is that about midway between the ankle and the knee there is a large purplish spot, the size of a dollar and a half. In the center of this there is a red cicatricial tissue; cicatricial tissue forms after an ulcer. Directly opposite this I found another purplish spot, and near the center of this spot a point a little larger than a pea, with cicatricial tissue. This indicates a cured abscess or ulcer. Cicatricial tissue is not as good as skin. It is not as permanent, and under some circumstances might cause a permanent running sore, or necrosis. If the jury should find the facts to be that the injury on the front of plaintiff's leg was caused as stated by the witnesses of the plaintiff, and that in one month from the time of the first injury an ulcer appeared upon the calf of the plaintiff's leg opposite said injury, in my opinion the natural and proximate cause of the ulcer or abscess was the discharge of some foreign body, such as iron, cloth, wood, bone, or anything that could not be absorbed. A piece of dead detached bone will come to the surface, if possible. No detached bones in the leg. If the jury believe and find as a fact that the defendant, by its negligence, produced the wound on the leg of the plaintiff which gave him great pain, discharged matter, rendered him unable to get out of his bed for several days, and physically unable to attend to his business for several...