Fortune v. Southern Ry. Co.
| Decision Date | 21 May 1909 |
| Citation | 64 S.E. 759,150 N.C. 695 |
| Parties | FORTUNE et al. v. SOUTHERN RY. CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Haywood County; Peebles, Judge.
Personal injury action by Connie E. Fortune and others against the Southern Railway Company. Findings for plaintiffs were set aside and a nonsuit allowed, and plaintiffs appeal. Reversed and remanded, with directions to enter judgment for plaintiff.
Action to recover damages for a personal injury alleged to have been received by plaintiff Connie E. Fortune caused by the negligence of the defendant. The cause was tried at July term, 1908, of the superior court of Haywood county, his honor, Judge Peebles, presiding. These issues were submitted.
Evidence held to show plaintiff, who accompanied her husband to a train upon which he was to depart, and who was injured in so doing, was not negligent.
Thereupon his honor, upon the ground that he had committed an error in not sustaining defendant's motion to nonsuit, set aside the findings of the jury and allowed the motion, from which judgment plaintiff appealed. In this court it was agreed by counsel that, if the opinion of the court should be with the plaintiff, judgment should be entered for the sum assessed by the jury.
W. B Ferguson, Frank Carter, and H. C. Chedester, for appellants.
Moore & Rollins, for appellee.
The evidence in this case tends to prove that the plaintiff accompanied her husband to defendant's station at Waynesville for the purpose of seeing him off as a passenger for Asheville. For the purpose of accommodating, the increased travel in summer, defendant had daily an extra coach left at a certain place on the side track close to the station at Waynesville, which was attached to the train when it arrived at Waynesville from the West. It was customary to open this extra coach some ten minutes before train time, and to permit passengers to enter it. On the date of the injury the car was standing at the usual place on the side track where passengers were accustomed to board it. The plaintiff and her husband stepped on the platform of this car with the view of entering it, about two minutes before train time but, finding the door locked, they were on the point of stepping off, when the collision occurred which caused the plaintiff's injury. They were not on the platform exceeding two minutes. At this time there was a large concourse of persons at the station waiting for the train. Under these conditions, and just as plaintiff and her husband were about to leave the platform, an engine was run into the side track at a dangerous rate of speed, variously estimated by the witnesses at from 15 to 30 miles an hour, and was caused to strike a car standing at the station platform, and to drive it against the car upon which plaintiff and her husband were standing with such force that the ends of the two cars buckled and rose from the track, and the shock threw the plaintiff down and injured her.
The learned counsel for defendant in his argument before this court rested his defense very largely upon the defense of contributory negligence upon the part of the plaintiff in attempting to enter the car. We do not think there is any foundation for such defense upon the facts of the case. The evidence discloses no negligent conduct upon the part of the plaintiff while on the car which in the least degree contributed to the injury she received. It...
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