Miller v. Atlanta & Charlotte Air Line Ry. Co.

• Decision Date: 14 May 1907
• Citation: 57 S.E. 345,144 N.C. 545
• Parties: MILLER v. ATLANTA & CHARLOTTE AIR LINE RY. CO.
• Court: North Carolina Supreme Court

57 S.E. 345

144 N.C. 545

MILLER v. ATLANTA & CHARLOTTE AIR LINE RY. CO.

Supreme Court of North Carolina

May 14, 1907

Appeal from Superior Court, Mecklenburg County; W. R. Allen, Judge.

Action by Jasper Miller against the Atlanta & Charlotte Air Line Railway Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

In an action for injuries to a passenger in a collision caused by backing of cars against a standing caboose, in which plaintiff was sitting, with the knowledge and consent of the carrier's servants, in order to show plaintiff guilty of contributory negligence, the jury must find that he knew or should have known that the front part of the caboose where he took his seat was not intended for passengers; that it was more dangerous than the rear part; that, under all the circumstances, he failed to exercise ordinary care in taking his seat there, with the knowledge of the flagman and without warning from him; and that his conduct proximately caused or concurred in causing the injury.

This case was before us at a former term. 143 N.C. 115, 55 S.E 439. The plaintiff entered a caboose car of the defendant which was attached to one of its freight trains at Gastonia as a passenger, intending to go to Charlotte. The jury, upon issues submitted by the court, found that he was a passenger and that he was injured by the negligence of the defendant but that he was guilty of contributory negligence. The caboose was divided by a partition into two compartments, the rear one for passengers and the front one for the employés and their tools and implements.

The two were constructed somewhat alike, each having a seat on the side, running lengthwise of the car. The day on which the plaintiff was injured was warm, and the rear compartment of the caboose was uncomfortable, not being as well ventilated as the front. The plaintiff went into the front compartment; there being a door in the front of the car, and a window on the side and both being open. He sat on the side seat and commenced to make entries in his notebook. After he had taken his seat, a flagman, apparently in charge of the caboose, asked him if he was going to remain on the car. Plaintiff replied that he was going to Charlotte, whereupon the flagman asked him to look after the caboose while he was away, which he consented to do. When the plaintiff had been seated about 20 minutes, the caboose was jerked violently by the backing of the freight cars against it with "tremendous force," and he was thrown against the door, which was out of order, his hand was caught and badly lacerated, torn, and mashed, so that he suffered great pain; the hand being permanently injured. The plaintiff testified that the conductor consented to his boarding the caboose where it was, though he politely notified the plaintiff that it would be drawn up to the station, and, if he waited, he could get on it there. The plaintiff requested the court to give the following instruction, which was refused, except as given in the charge: "It is not negligence per se for a passenger to enter a car at a station in apparent readiness to receive passengers a few minutes ahead of the time fixed by the rules of the company for receiving passengers; nor is it negligence per se for the plaintiff, after boarding the caboose where he did, to fail to look to see if cars were being backed against the caboose, nor was it negligence per se for the plaintiff to get on the caboose if it was detached from the engine at the time he entered, nor was it negligence per se for the plaintiff to get into the apartment of the car he did when he entered the caboose, and if the jury so find, and further find that the plaintiff was in the exercise of ordinary care when he entered the car and when he was injured, then the jury should answer the third issue 'No." The court charged the jury as follows: "On the third issue the burden is upon the defendant to satisfy you, by the greater weight of the evidence, that the plaintiff was negligent, and that that negligence was the proximate cause of the injury to him. The question of the contributory negligence of the plaintiff is to be determined by his conduct after he got upon the car and dependent solely on that. It was the duty of the plaintiff to exercise his intelligence and senses and to observe the condition of the car, and if, by the exercise of ordinary care, he could have discovered the rear part of the car was provided for passengers and the front not, and for his own convenience and comfort he went to the front section and sat down near the door, he was guilty of contributory negligence, and you will answer the third issue 'Yes.' If, however, either end was used for passengers, it would not be negligence for the plaintiff to go into the front end of the car. If, however, he could not discover, by the exercise of ordinary care, that the front end of the car was not used for passengers, then it would not be negligence to go in there, but it would be his duty then to exercise ordinary care, if, by the use of ordinary care, he could discover that it was dangerous." There was judgment for the defendant upon the verdict, and the plaintiff appealed.

Brevard Nixon and Maxwell & Keerans, for plaintiff.

Wm. B. Rodman, for defendant.

WALKER, J. (after stating the case).

The only question that requires consideration in this case is whether the instruction of the court, as to contributory negligence, was correct, for the jury found that plaintiff was a passenger and that the defendant had been negligent in the management of the train. The instruction makes the contributory negligence of the plaintiff turn solely upon whether, by the exercise of ordinary care, he could have discovered that the rear compartment was intended for passengers and the forward compartment for employés, and whether also he went into the front section for his own comfort and convenience and sat down near the door. A plaintiff cannot be said to have contributed to his own injury by his negligence, unless he has failed to exercise that degree of care which a man of ordinary prudence would use for his own safety in the same or substantially similar circumstances, and, further, unless his want of care has proximately contributed to causing the injury of which he complains. The question upon the second issue was not merely whether the plaintiff knew or should have known that the rear compartment was for the accommodation of passengers, and, for that reason, he should have taken a seat therein, but the inquiry should have been broadened so that the jury should have further ascertained and found whether the front compartment was more dangerous than the rear one, and whether, by taking a seat therein, the risk and peril of plaintiff's position in the car was thereby enhanced; whether, also, a man of ordinary prudence would have acted as he did under the circumstances, and finally whether his conduct proximately caused or concurred in causing the injury. 1 Thompson on Negligence, § 216. It was not per se negligence to take a seat in the front compartment, even though it was intended for the employés of the defendant and the storage of their tools. Creed v. Railroad, 86 Pa. 139, 27 Am. Rep. 693; Burr v. Railroad, 64 N. J. Law, 30, 44 A. 845. Besides, the instruction of the court ignores the fact, of which there was evidence, that the flagman who had temporary charge of the car saw the position occupied by the plaintiff, and made no objection to his continuing in it, but, instead, requested him to watch the car during his absence. 6 Cyc. 641.

The claim of the defendant is that the plaintiff was guilty of such negligence in going into the front section of the car as to bar his recovery for the injury he there received, however negligent the defendant itself may have been. This same contention was made in Webster v. Railroad, 115 N.Y 112, and in reference to it the court said: "There would be some basis for this claim if his [plaintiff's] injury could be traced to his presence in that car. But, if his presence there did not have any relation to the injury, then it furnishes no defense to the defendant. It does not appear that the baggage car was, on the occasion of the collision, any more dangerous than the passenger coach." In Creed v. Railroad, 86 Pa. 139, 27 Am. Rep. 693, the facts were that the plaintiff's intestate was a passenger on a mixed freight and passenger train of the defendant. He went into...