Hodges v. Southern Ry. Co.

• Decision Date: 30 April 1897
• Citation: 27 S.E. 128,120 N.C. 555
• Parties: HODGES v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

27 S.E. 128

120 N.C. 555

HODGES v. SOUTHERN RY. CO.

Supreme Court of North Carolina

April 30, 1897

Faircloth C.J., dissenting.

Appeal from superior court, Mecklenburg county; Norwood, Judge.

Action by C. W. Hodges against the Southern Railway Company. From a judgment of nonsuit, plaintiff appeals. Reversed.

Evidence that, after the calling of the name of a station at night the porter had opened the door, and, a passenger having gone out on the steps, the porter said, "All right sir," and that the passenger then stepped off without knowing that the train was moving, does not necessarily show negligence on the part of the passenger.

Burwell Walker & Cansler, for appellant.

Geo. F. Bason, for appellee.

DOUGLAS J.

In this case, the court below, at the close of the evidence, having intimated an opinion that the plaintiff was not, in any aspect of the evidence, entitled to recover, the plaintiff excepted, and submitted to a nonsuit. We think there was error. Taking the evidence of the plaintiff as true (and it must be so taken for the purposes of this appeal), there was sufficient evidence to go to the jury as to the negligence of the defendant. Viewed in the light of the same testimony, the action of the plaintiff was not contributory negligence per se. His station having twice been called, he went to the front end of the car to get off. The porter opened the door for him, and the plaintiff stepped down to the last step of the car. While the plaintiff was standing there, the porter who was standing behind him with a light, said, "All right, sir." The plaintiff then stepped off, and was injured. Under the circumstances, the plaintiff had a right to suppose that the remark of the porter was addressed to him, and he was not necessarily negligent in acting upon it. It was dark, and he could not tell whether the train was moving. The porter must have known that the plaintiff was standing there for the purpose of getting off at the proper time; and, if the expression "All right" meant anything, it meant that all was right for him to get off. It was not only an implied invitation to get off, but it was equivalent to an assurance that he could safely do so. There was, therefore, no negligence per se, if any at all. Lambeth v. Railroad Co., 66 N.C. 494; Nance v. Railroad Co., 94 N.C. 619; Watkins v. Railroad Co., 116 N.C. 961, 21 S.E. 409; Hinshaw v. Railroad Co., 118 N.C. 1048, 24 S.E. 426. We have...