Kearney v. Seaboard Air Line Ry.

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

74 S.E. 593

158 N.C. 521

KEARNEY v. SEABOARD AIR LINE RY.

Supreme Court of North Carolina

April 10, 1912

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.

In an action for injury to an alighting railway passenger, an instruction that, if certain facts were found, "he would be entitled to recover," held not erroneous, where specific directions were given as to how the issues should be answered.

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 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--a foot 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 verdict in favor of the plaintiff, and from a judgment rendered thereon the defendant appealed.

Murray Allen and F. S. Spruill for appellant.

Bickett, White & Malone, for appellee.

ALLEN J.

At the conclusion of the evidence, the defendant moved for judgment of nonsuit, upon three grounds: (1) That there was no evidence of negligence on the part of the defendant, causing injury to the plaintiff. (2) That the plaintiff was guilty of contributory negligence on his own evidence. (3) That the plaintiff was injured while riding on the platform of the train, in violation of section 2628 of the Revisal.

In the determination of this motion, we must accept the evidence of the plaintiff as true, and, guided by the rule of the "prudent man," which is the standard, must consider, not only the evidence of the witnesses, but also the situation of the parties and the circumstances surrounding them.

The plaintiff was a passenger on a train, carrying passengers and freight, and as such assumed the usual risks incident to traveling on such trains, when managed by prudent and careful men in a careful manner (Marable v. Railroad, 142 N.C. 563, 55 S.E. 355; Usury v. Watkins, 152 N.C. 760, 67 S.E. 926), but he was entitled to the highest degree of care of which such trains are susceptible, and had the right to assume that the employés of the defendant would perform their duties and that the train would be operated with care. Suttle v. Railroad, 150 N.C. 673, 64 S.E. 778.

The train had reached Franklinton, which was a terminus of the line, and had stopped at the usual place for passengers to leave the train. This was evidence of an invitation to alight. Nance v. Railroad, 94 N.C. 619; Denny v. Railroad, 132 N.C. 340, 43 S.E. 847; Railroad v. Cousler, 97 Ala. 235, 12 So. 439; Raub v. Railroad, 103 Cal. 473, 37 P. 374; Fetter on Carriers, § 58.

When the train reached its destination, it was the duty of the defendant to exercise the highest degree of care practicable, and to give the plaintiff sufficient time and opportunity to leave the train, and if it failed to do so, and there was a sudden start of the train as he was alighting, this would be negligence. Hutchinson on Carriers, § 1118; Smith v. Railroad, 147 N.C. 450, 61 S.E. 266, 17 L. R. A. (N. S.) 179.

If passengers could leave the train on either side, and one side was more dangerous than the other, it was the duty of the defendant to have some employé present to advise the passengers. Ruffin v. Railroad, 142 N.C. 128, 55 S.E. 86.

It was also the duty of the plaintiff to leave the train with reasonable promptness, and to exercise the care of a person of ordinary prudence in doing so, and, if he failed in this duty, he was negligent.

These are the duties imposed by law upon the plaintiff and defendant, respectively, and when considered in connection with the evidence of the plaintiff, viewed in the light most favorable to him, as it is our duty to do in passing on a motion to nonsuit, we are of opinion that there was evidence of negligence on the part of the defendant, and that the plaintiff could not be declared guilty of contributory negligence as matter of law. According to the evidence of the plaintiff, the train had reached its destination, and had stopped at the usual place for passengers to alight. No step for passengers was placed on either side of the train, and no employé of the defendant was present to advise or assist, and, while he was getting off the train with reasonable promptness, there was a sudden movement of the train, which injured him. This is undoubtedly evidence of negligence. Moore on Carriers, p. 674; Hutchinson on Carriers, § 1118; Nance v. Railroad, 94 N.C. 619; Tillett v. Railroad, 118 N.C. 1031, 24 S.E. 111; Smith v. Railroad, 147 N.C. 450, 61 S.E. 266, 17 L. R. A. (N. S.) 179.

When the train stopped, the plaintiff was sitting on the platform and he immediately attempted to get off on the side opposite the passenger station. He had been a frequent passenger on the train, and usually got off on this side, as did a majority of the passengers, and without any objection from the defendant. He did not rise to his feet, but held on to the iron railing and slid off, and after his feet reached the ground, and he was getting in an erect position, or, as he says, straightening up, the sudden movement of the train injured him. We are not prepared to hold as matter of law that it is negligence for a passenger, 69 years of age, when alighting from a train in the night, to let himself to the ground gradually and slowly, and particularly so in view of the fact that he had the right to assume that the defendant would not be negligent, and that the train would not move before he was given a reasonable time to get off, nor can we say it was negligent to get off on the side he did, when it was in evidence that he had done so repeatedly, without objection by the defendant, and that passengers usually got off on that side. His honor...