Lambeth v. North Carolina Rail Rd. Co..

• Decision Date: 31 January 1872
• Citation: 8 Am.Rep. 508,66 N.C. 494
• Court: North Carolina Supreme Court
• Parties: J. A. LAMBETH, Administrator v. NORTH CAROLINA RAIL ROAD COMPANY.

66 N.C. 494

8 Am.Rep. 508

J. A. LAMBETH, Administrator

v.NORTH CAROLINA RAIL ROAD COMPANY.

Supreme Court of North Carolina.

January Term, 1872.

1. The policy of the law requires common carriers to use a high degree of care, in transporting passengers to guard against probable injury.

2. It is their duty to transport and place their passengers safely at the point of destination, and if injury to the passenger ensues from a failure to observe due care, the carrier is prima facie responsible.

3. Where a passenger jumped off a rail road train, while running at a speed of from two to four miles an hour, and this was the proximate cause of the injury complained of, and contributory negligence is alleged, the true criterion of the care required from the passenger is that degree which may have been reasonably expected from a sensible person in such situation.

4. A passenger on a railroad train had a right to expect that the carrier had employed a skilful and prudent conductor who had experience and knowledge in his business sufficient to correctly advise and direct them as to the proper time and manner of alighting from the train.

5. Where, when the usual signal was given for slacking the speed of the train the conductor went with a passenger and his companion out on the platform to assist them in getting off safely, and such passenger without any directions from the conductor, voluntarily increased danger by jumping off the train while in motion, the carrier is not responsible for injury resulting therefrom; but if the motion of the train was so slow that the danger of jumping off would not be apparent to a reasonable person, and the passenger acted under the instructions of the conductor, then the defence of contributory negligence would be unavailing.

6. Where there was evidence tending to prove that the intestate of the plaintiff informed the conductor that he wished to get off at a certain point, and on approaching the place, the conductor went with him and another, upon the platform of a rear car, and the intestate got upon the step of the platform preparatory to springing off, conductor cautioning him not to “jump off yet,” and when a few moments after the conductor said “now this your time--jump,” and thereupon he jumped off and on to a platform, fell down and rolled under the train and was killed; the train at the time going much slower by degreess than before the brakes were blown on, the other passenger alighting immediately after the intestate, running along with the train, rather than jumping off at right-angles, that he was not able to “take up” for several yards, that intestate, when he jumped off, had under his left arm a stencil-plate about the size of an ordinary barrel-head, between two pieces of very thin plank, also a satchel of capacity sufficient to hold two quarts, to which were attached light leather straps, passing around his shoulders, and that intestate also had a book in size ten inches by five, and plaintiff requested the following instructions to the jury “that if the jury should find that the defendant did not stop its train along side of the place where the intestate desired to alight, and that the conductor while passing such place, (a platform) and when the cars were moving at from two to four miles an hour, directed the intestate to alight, and he obeyed the direction he was justified in doing so, and his act in law, was not contributory negligence hindering a recovery,” Held that the refusal of the Court to give such instructions was erroneous, and entitled the plaintiff to a venire de novo.

This was a civil action tried before His Honor Judge Tourgee and a jury, at Fall Term, 1871, of Guilford Superior Court.

The plaintiff complained for the negligent killing of his intestate by the defendant, a common carrier.

It was in evidence on behalf of the plaintiff, that at the time the injury was received resulting in the death of J. S. Brown, his intestate, the latter was a passenger on the train of the defendant from Greensboro' to Graham station, and the injury was received at Graham under the following circumstances:

One Anthony testified that he and the intestate of the plaintiff were on the train and tried to get off at Graham station; that when near the depot the whistle was sounded for application of brakes and thereupon he and Brown went out upon the platform at the end next the sleeping car, which latter was the rear car of the train; that when they got on the platform the conductor, Ligon, was present with his lamp in hand and he commenced with one hand to tighten the brake on the platform of the sleeping car, and the witness stood on the platform of the coach next before the sleeping-car and reaching across helped him to tighten the brake; that when the coach on which Brown and witness were passengers was passing opposite the platform at the depot and whilst the conductor and witness were tightning the brake, Brown got down from the platform on to the steps as if about to alight, when the conductor cautioned him not to jump yet, saying the train would get slower; that when about opposite the centre of the depot platform, or a little past, Brown still standing on the steps of the car platform, the conductor said, “now is your time, jump,” and thereupon Brown immediately alighted on the depot platform and fell down...