Kearney v. Seabd. Air Line Ry

• Decision Date: 10 April 1912
• Citation: 74 S.E. 593,158 N.C. 521
• Court: North Carolina Supreme Court
• Parties: KEARNEY. v. SEABOARD AIR LINE RY.

74 S.E. 593

(158 N.C. 521)

KEARNEY.

v.SEABOARD AIR LINE RY.

Supreme Court of North Carolina.

April 10, 1912.

1. Trial (§ 105*) — Motion for Nonsuit-Consideration.

In considering a motion for a nonsuit, plaintiff's evidence must be accepted as true.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 373, 374; Dec. Dig. § 165.*]

2. Carriers (§ 280*) — Passengers—Mixed Trains.

A passenger on a mixed train assumes the usual risks incident to traveling on such trains when managed by prudent men in a careful manner, but he is entitled to the highest degree of care to which such trains are susceptible.

[Ed. Note.—For other cases, see Carriers', Cent. Dig. §§ 1085-1092, 1098-1106, 1109, 1117; Dec. Dig. § 280.*]

3. Carriers (§ 303*)—Invitation to Alight —Evidence.

Arrival of a train at the terminus of the line, and at the usual place for passengers to alight, shows an invitation to alight.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1216, 1218, 1224-1243; Dec. Dig. § 303.*]

4. Carriers (§ 303*) — Duty to Alighting Passenger.

A railroad company is bound to use the highest degree of care practicable toward pas-sengers alighting at their destination, and to give them sufficient time and opportunity to leave the train; the sudden starting of a train while a passenger is alighting constituting negligence.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1216, 1218, 1224-1243; Dec. Dig. § 303.*]

5. Carriers (§ 303*) — Duty to Alighting Passenger.

If alighting passengers can leave a train on either side and one side is more dangerous than the other, the carrier must have some employe present to advise the passengers.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1216, 1218, 1224-1243; Dec. Dig. § 303.*]

6. Carriers (§ 333*)—Alighting Passengers —Care Required.

' An alighting passenger must leave the train with reasonable promptness, and use ordinary care for his own safety.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1385-1397; Dec. Dig. § 333.*]

7. Carriers (§ 318*)—Injury to Alighting Passenger — Negligence — Evidence — Sufficiency.

In an action against a railroad company for injury to a passenger, caused by the train moving while he was alighting, evidence held to warrant a finding that the carrier was negligent.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314; Dec. Dig. § 318.*]

8. Carriers (§ 347*)—Injury to Alighting Passenger—Contributory Negligence — Jury Question.

In an action against a railroad company for injury to a passenger caused by the train moving while he was alighting, evidence that a passenger 69 years old let himself from the steps of the car gradually and slowly, it being night, is insufficient to show contributory negligence as a matter of law.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1346-1397, 1402; Dec. Dig. § 347.*]

9. Carriers (§ 339*)—Injury to Passenger-Contributory Negligence—Requisites.

Negligence of a passenger in alighting from a train does not prevent his recovery for injury received while so alighting unless the negligence was contributory, and it could not be contributory, unless the proximate cause of the injury, v

lEd. Note.—For other cases, see Carriers, Cent. Dig. § 1353; Dec. Dig. § 339.*]

10. Carriers (§ 333*) — Alighting Passengers—Injury—Contributory Negligence.

Revisal 1905, § 2628, which precludes recovery by a railway passenger for injury while on the platform of a car in violation of the company's regulations, does not affect the passenger's right to recover for injury received while alighting at his destination.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1385-1397; Dec. Dig. § 333.*]

11. Trial (§ 296*)—Alighting Passengers —Injury—Instructions.

In an action for injury to a passenger while alighting, an instruction that, if the jury found certain facts, "he would be entitled to recover, " was not erroneous, where the instructions gave specific directions as to how the issues should be answered according to their findings on the different contentions.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716. 7x8; Dec. Dig.} 206 * Carriers, Cent. Dig. § 1406.]

12. Trial (§ 260*)—Alighting Passengers-Injury—Instructions.

In an action for injury to a railway passenger, it was not error to refuse to direct a finding for the carrier on a finding that plaintiff was injured while attempting to jump from a moving train, where the court instructed that plaintiff could not recover unless he was injured while getting off the train after it stopped, and presented defendant's contention that the train was moving at the time of the accident.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §S 651-659; Dec. Dig. § 260;* Carriers, Cent. Dig. § 1407.]

13. Carriers (§ 339*) — Alighting Passengers—Injury—Instructions.

In an action for injury to a railway passenger while alighting, it was not error to instruct that if the train slowed down on approaching plaintiff's destination at the usual place of slowing down and stopped before plaintiff attempted to alight, and as he was alighting, but before he had had reasonable time to do so, the engineer suddenly, without notice, moved the train causing plaintiff to fall and plaintiff was injured thereby, he could recover, though he was alighting on the opposite side of the train from the station, and on the side where passengers were not accustomed to alight.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 1353; Dec. Dig. § 339.*]

Brown, J., dissenting.

Appeal from Superior Court, Franklin County; Ferguson, Judge.

Action by H. C. Kearney against the Seaboard Air Line Railway. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action to recover damages for personal injuries, caused by a car on which plaintiff had been riding as a passenger passing over his foot, making amputation necessary. The plaintiff, a man 69 years old, was a passenger on defendant's train on the night of October 26, 1910, from Louisburg, N. C, to Franklinton, N. C. The train consisted of six box cars and two passenger coaches. The defendant operates a branch line between Louisburg and Franklinton, and in getting into the station at the latter point the trains pass through a switch north of the passenger depot. On the night of this accident the engine stopped at this switch to have it changed, in order to permit the train to pass onto a side track and up to the passenger depot. When the engine stopped at this point, which was 386 feet from the depot, the passenger coach on which plaintiff was riding was seven car lengths further from the depot, making a total distance of more than 700 feet. At this point the plaintiff went on the platform of the car. In describing the circumstances under which he went out on the platform, the plaintiff says: "At any rate, just before Mr. White had gotten on, or about the time he got on the steps, had stepped down there, was when I came out of the coach, and the train had kind of slowed a little, and there was a slack between the cars—lost motion—by the connection being a foot probably, on the box cars especially. There is a foot difference probably—afoot play between two box cars. There is not so much difference between the coaches; that is, the box cars in front. Those box cars were in front of me. It being dark there, and I couldn't see, there was a jerk, and I caught hold of the iron rod and sat down, like this, with my feet down here, and, when I sat there, I looked to see, and the only thing was Prof. White right across on the steps. * * * I sat down on the platform of the coach with my feet on the first step. I think there are about four steps, counting the top one, down to the bottom one of the steps to get off. When that jerk came, I had hold of this iron, and sat right down on the end of the coach, not on the seat." The plaintiff remained in this position, sitting on the platform and steps of the car, until the train reached the usual place for slowing down the train for the purpose of permitting passengers to alight when the train reached a point opposite the passenger station, and, according to his evidence, it then stopped.

The passenger station is on the southeast side of the track at Franklinton, and a light is kept burning in front of the station. Plaintiff says there was a light at the station where it stops regularly on the east side, and the evidence of all the witnesses familiar with the depot is to the same effect. It is. agreed that plaintiff was attempting to alight on the side of the train opposite the passenger station. There was evidence on the part of the plaintiff that passengers were in the habit of alighting on the side opposite the passenger station, without objection by the defendant, and that two passengers got off on that side to one on the other, and that it was equally safe, except it was a few inches lower, and there was no light on that side. There was also evidence on the part of the plaintiff that the train stopped at the usual stopping place for passengers to alight, and that he was then sitting on the top step of the platform; that after the train stopped, holding to the iron rail with one hand, he slid off until his feet were on the ground, and, as he was straightening up, there was a sudden jerk of the train, that he was stricken in the back, knocked down, and dragged eight or ten feet, when the train stopped again. Other passengers were on the platform with the plaintiff, and got off about the same time, and on the same side. The defendant offered evidence tending to prove that the usual and proper place for passengers to alight was on the side next to the passenger depot, that the plaintiff was injured on the platform, or while trying to alight while the train was in motion. The plaintiff also offered evidence that the step on which passengers alighted was left on the platform, and that no employé of the defendant was present to assist or notify passengers. There was a...