Denny v. North Carolina R. Co.
| Citation | 43 S.E. 847,132 N.C. 340 |
| Parties | DENNY v. NORTH CAROLINA R. CO. |
| Decision Date | 14 April 1903 |
| Court | United States State Supreme Court of North Carolina |
Appeal from Superior Court, Guilford County; Neal, Judge.
Action by W. R. Denny against the North Carolina Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.
A passenger on defendant's train went upon the platform of the car, in anticipation of the train's stopping at a regular stopping place, and stood on the steps of the car in violation of defendant's rule (known to him) forbidding passengers to go on the platform while the train was in motion. The train ran by the regular stopping place. There was no evidence that the conductor was on the platform, or knew or had any cause to think that plaintiff was there, or invited him to go there. A sudden jerk of the train threw plaintiff off, and he was injured. The speed of the train was about 8 or 10 miles an hour when he fell. Held, that plaintiff was properly nonsuited.
Scales Taylor & Scales, for appellant.
King & Kimball, for appellee.
This is an action to recover of the defendant damages for personal injuries alleged to have been sustained by the plaintiff while a passenger on the train of the defendant's lessee. The portion of the evidence necessary to be considered in passing upon the exceptions to the ruling of his honor is as follows: The plaintiff testified: That he purchased a ticket of the agent of the defendant's lessee at Greensboro from that point to McLeansville, a station on the road, and paid therefor the sum of 25 cents. That he went into the defendant's car, and after the train left Greensboro the conductor came through the car to gather tickets of the passengers. That he handed the conductor the ticket; calling his attention to the fact that he wished to get off at McLeansville, and saying, "Do not forget me." He spoke loud, and the conductor nodded his head, and he understood that the conductor heard him. As the train approached McLeansville, it was a little late, and was going at a pretty rapid speed. Plaintiff kept his seat until after the train had blown the regular station whistle, about a mile from the regular stopping place. The whistle blew to stop at the station Plaintiff knew that it meant for the train to stop at the station. Some time after the whistle blew, the plaintiff got up and went to the end of the car, and by that time the train had gotten nearly to the stopping place. He got up because he knew that the train was getting near the station, knew the whistle had blown, and knew that they had promised to stop there and let him get off. There is a regular stopping place there--a regular platform. The train stops there only long enough for a person to get off. On this occasion it did not stop at the regular stopping place, but ran past about 150 yards. After it passed the regular stopping place it began to slow up, and continued to get slower. Just as it was coming to the stopping place the plaintiff went out on the platform, and after it had gone 75 or 100 yards past the stopping place the plaintiff got on the steps, and then the train got slower and slower. It was going too fast for him to get off, and he was waiting for it to get slow enough. He was holding with his left hand to one of the rods, and there was a sudden jerk of the entire train, and at the same time his hold was broken, and he had to pick his way the best he could to the ground. The jerk broke his hold and caused him to go off then. The snatch of the car which broke his hold was really the cause of the injury. The train did not stop entirely until after he fell. When this jerk came the speed was quickened and the train ran on some distance. The plaintiff also testified in regard to his injuries. Upon cross-examination he testified that he had seen the notice posted up by the door that persons must not get on the platform while the train was moving, and that he knew that was the rule of the company; that, if he had kept his seat until the train stopped, the accident would not have happened; and that it would not have happened if they had not jerked the train; and he also knew that it was the rule of the company to stop at the regular, prepared platform. A. M Rumley, a witness for the plaintiff, testified that the train was running about 8 or 10 miles an hour when he fell. The defendant moved to nonsuit the plaintiff. The motion was denied, and defendant excepted. At the conclusion of the evidence the defendant renewed its motion to nonsuit the plaintiff. The motion was allowed, and judgment rendered dismissing the action "as upon nonsuit." The plaintiff excepted and appealed, assigning as error the ruling of the court upon defendant's motion.
The plaintiff relies upon the principle announced by this court in Nance v. Railroad, 94 N.C. 619. The correctness of the rule laid down in that case has not been questioned by any decision of this court, nor are we disposed to do so now. We fully approve it It was the obvious duty of the defendant to stop its train at the station named on the plaintiff's ticket, and permit him to get off safely; and if the movement of the train had been brought gradually slower, until it had been brought "nearly--almost--to a full stop," it would not have been negligence for the plaintiff to go out of the car on the platform, and step to the platform of the station. Merrimon J., speaking for the court, says: "By 'nearly--almost--to a full stop' is meant very slow; a slight, gentle, creeping movement." The learned justice further says: In that case the allegation in the complaint was that the train had already slackened its speed to nearly a "full stop," when there was no real or apparent danger; that the car had reached the usual place for getting off, and when it was safe and without danger for her to do so she stepped off, and, while in the act of doing so, was by a sudden jerk thrown down and injured. In Tillett v. Railroad, 118 N.C. 1031, 24 S.E. 111, the plaintiff was on the train, and...
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