Marable v. Southern Ry. Co.
| Decision Date | 07 November 1906 |
| Citation | 55 S.E. 355,142 N.C. 557 |
| Parties | MARABLE v. SOUTHERN RY. CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Iredell County; Ferguson, Judge.
Action by M. V. Marable against the Southern Railway Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.
In taking passage on a freight train, a passenger assumes the usual risks incident to traveling on such trains when managed by prudent men in a careful manner.
A carrier is not an insurer of the safety of passengers but its liability for injuries to a passenger is based on negligence.
This is an action brought to recover damages for injuries alleged to have been caused by the negligence of the defendant. The plaintiff was a passenger on one of defendant's local freight trains in September, 1904. The train was composed of about 35 cars and a caboose, in which the plaintiff was sitting on a seat with his feet on a box having tools in it a stove being near and in front of him. There were cushioned seats in the car. He took passage at Charlotte for Landis and presented to the ticket agent an "Annual Clergyman's Reduced Permit" which contained the following contract "In consideration of the reduced rate granted by this permit, the owner assumes all risk of damage and accident to person or property while using the same." The plaintiff testified that his name was on the permit, but that he had refused to sign it, though he used it for the purpose of securing a reduced rate, and was allowed the reduced rate by the agent. The plaintiff objected to the introduction of the permit, the objection was overruled and he excepted. The conductor took up his ticket after he got on the train. When between Concord and Glass the train came to a sudden and violent stop, throwing the plaintiff from his seat on the end of the bench against the stove and bruised and otherwise injured his right forearm. His nervous system was affected and his health failed. The engineer, not now in the service of the company, testified that there were 35 cars in the train which were fully equipped with automatic air brakes and all necessary appliances. Everything was in first-class condition. When the train was approaching Glass, he got an order to stop there and did stop the train in the usual manner. The train was on an upgrade all the way to Glass from Concord and there could have been no unusual jar or jolt of the train when it stopped. There was a jar and always is when such a train is stopped. It comes from the slack in the cars. There is more jolting in a freight than in a passenger train. The train was running from 6 to 8 miles an hour. There was evidence tending to show that the plaintiff occupied a dangerous position and one likely to cause his fall from the seat if the train should make the usual stop and that a person not used to riding on a freight train of 35 cars is very apt to get a good bump if he is not careful, and that almost any one will be jolted some. There was much other evidence substantially to the same effect as that already stated.
The court, at the request of the plaintiff, charged the jury that a carrier cannot stipulate for exemption from liability for negligence, and the permit held by the plaintiff and used by him to get a reduced rate of fare would not exonerate the defendant if the plaintiff was injured by its negligence, and that it is no bar to his recovery; that where one is injured in a public conveyance and the injury resulted from something over which the carrier had control, the law raises a presumption of negligence which extends to the occurrence regardless of the party who is injured; that, if the jury found that the plaintiff was injured as described by him, the law raised a presumption of negligence and he is entitled to recover, unless the defendant has shown by the greater weight of the evidence that the sudden and violent stoppage of the train was caused by something not within its control, and, unless this has been shown by the defendant, they will answer the first issue (as to defendant's negligence) "Yes"; that in such a case and under such facts and circumstances the doctrine of res ipsa loquitur applies and casts the burden on defendant to show that the injury was unavoidable, and, if it has failed so to do, they will answer the first issue "Yes." These were all the instructions requested by the plaintiff on the first issue, and all were given. The court, at defendant's request, charged the jury that the common law made the defendant an insurer of the plaintiff's safety, and that the permit had the effect of relieving the defendant of the said common-law liability, and that defendant would only be liable for negligence if there was any; that negligence must be shown to have caused the injury which must have proceeded from some fault of the defendant; that the plaintiff assumed the ordinary risks incident to the running of a freight train, such as the one in question was, if it was managed in a prudent and careful manner, and the jerking of the train which is alleged to have caused the injury was unavoidable and such as ordinarily occurs in the operation of a freight train, and, if the train was so managed and the jolting or jarring which caused the injury was unavoidable and only incidental to the running of such trains, even when prudently and carefully managed, they should answer the first issue "No." The court in its general charge, which was elaborate, explained to the jury the contention of the parties and the bearing of the testimony upon the issues in the case, and then substantially instructed the jury that, while the burden of the issue is upon the plaintiff and he must show negligence, yet, if there was such a sudden and violent stopping of the train that plaintiff was thrown from his seat, it would require explanation from the defendant, and the inquiry naturally arises, why was the train so suddenly stopped? The answer should naturally come from the defendant, as the plaintiff was in the caboose and the defendant's servants were in charge of the train.
The jury answered the first issue, as to defendant's negligence, "No." Judgment was entered for the defendant, and the plaintiff appealed.
G. B. Nicholson, Furches & Coble, and J. B. Connelly, for appellant.
L. C. Caldwell, for appellee.
WALKER, J. (after stating the case).
We can find no fault with the instructions given by the court to the jury when they are considered together and construed in the light of the facts which the evidence tended to establish. The judge gave the plaintiff the full benefit of the circumstances attending the injury as evidence of negligence and charged the jury that the defendant must show that the jolting of the train was unavoidable in order to acquit itself of negligence. A carrier of passengers is not an insurer, as is a carrier of goods. He is, therefore, not absolutely liable for the safety of the passenger as the carrier of goods is for the safety of the goods intrusted to his care. His liability is based on negligence, and...
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