Action
by S. J. Roberts against the Atlantic Coast Line Railroad
Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
Where
in an action for injuries to a passenger attempting to board
a train, the evidence showed that the conductor saw the
passenger attempting to board the train and saw a trunk
placed by the trainmen near the track, and that the conductor
could have stopped the train in time to prevent injury to the
passenger by coming in contact with the trunk, the court
properly submitted the issue of last clear chance.
Where
in an action for injuries to a passenger attempting to board
a train, the passenger relied on the negligence of the
carrier in starting the train too soon after the conductor
called "All aboard," and on the act of a porter in
hindering his efforts to board, and on the failure of the
conductor to stop the train after the danger to the passenger
was or should have been apparent, the conduct of the
passenger in not taking the train until it had started was
not, as a matter of law, the proximate cause of the injury.
There
was evidence on the part of the plaintiff tending to show
that, on or about November 9, 1909, the plaintiff having
purchased a ticket at Warsaw, N. C., with a view of returning
to Mt. Olive on the 10:30 train of defendant company, was
seriously injured in endeavoring to get aboard said train as
it was leaving the station yard. That the train in question
was 20 minutes late, and plaintiff having bought his ticket
drove with a friend around the town of Warsaw, and having
returned awaited the arrival of the train in the station
yard, in a few feet of the main track and of the train when
it came up. The incoming passengers left the train and
baggage was unloaded. In unloading the defendant's
employés placed a trunk on the platform very near the train.
That the engine and baggage car were opposite plaintiff when
the train came to a standstill, and plaintiff started down to
board the train, and "had reached front end of
second-class car."
"I
moved up to get hold of the rails of the platform. Another
gentleman ahead stepped on the step. He was helping on a lady
and child. I took hold of the rear end of the next forward
rail, which was the car for colored people. I caught hold
with both hands. The porter had stepped right ahead of me on
the step. Conductor gave signal to leave. I saw it and
stepped my left foot on the bottom step. The porter was on
the second step. He was looking over my head. I spoke to him
and told him to move out of the way. I repeated it a time or
two. He did not appear to hear me--paid no attention to me.
The train moved away at fast speed. That left me standing on
the step with my left foot forward and right foot hanging
down. Several yards up the track there was a trunk sitting up
on end, right by the side of train. The trunk struck my right
leg from my knee down and knocked me off the step; knocked me
pretty hard; knocked my left hand loose. I still held to the
rail with my right hand. When I came down, I struck on the
crotch of the steps with the small of my back, left side. My
hand slid down on the rail, and I descended low enough for me
to see the track rails on that side. I caught with my left
hand the cog to the brake at the platform, and was trying to
get straight. The conductor came up and asked me if I was
hurt. I replied, 'Do you think I am iron?' I did not
know the conductor. I was badly hurt in my left side, and in
about five hours I was very sick, and was in bed seven weeks.
I have been in bed two-thirds of my time since. Dr. Kornegay
saw me about five hours after I was hurt, and he has been
attending me ever since."
There
was evidence further that the occurrence as it took place was
in view of the conductor and other employés of the train.
That the conductor called, "All aboard," and
immediately the train started. Speaking to the significance
of this call, the conductor testified: "When I make this
announcement, 'All aboard,' I mean to give notice to
those who are not on the train to get on, and that, I
understand, to be the general meaning." There was
evidence on part of defendant that plaintiff was at southeast
corner station platform, talking to some one when call
"All aboard," was made, and the train after having
waited the full time at the station started; that he
approached and was injured in the endeavor to get on a moving
train.
The
porter, testifying for defendant, denied
that he in any way hindered or obstructed plaintiff. The
conductor, testifying, gave account of the occurrence as
follows: "I was conductor on the train. We stopped at
Warsaw six or eight minutes. It was transfer point of Clinton
Railroad. The train had been at station several minutes
before I saw plaintiff. I had assisted passengers off and on
then walked up baggage car two lengths away. I then saw
plaintiff. He was at the southeast corner of the station
platform, talking with some one who was sitting in a buggy.
After the train started, I stepped on front end of first
coach. Plaintiff attempted to catch rear end of same car. He
was walking backwards, with both hands raised as if to catch
hold of the rails to the platform [which was the right way
for him to walk, if he was going to catch on to a moving
train]. It was after he had caught the handrail that he came
in contact with the trunk. I hollered to him. I think I said,
'Look out.' I saw he was going to strike the trunk,
but I don't think he heard me. I saw him pull himself up.
I then went through the train where he was. I found him in
the first car. I asked him if he was hurt, to which he
replied, 'I think not.' He was 10 or 15 feet from the
train when I first saw him coming to the train. It had moved
about the distance of one coach when he struck the trunk. It
was moving at four miles an hour. I say, 'All
aboard,' and hold up my finger and start immediately. If
the trunk had not been there, he would have made the platform
all right. The trunk had just been taken off the baggage car
and placed there, and was for Warsaw. The trunks as they are
taken off are placed beside the track. I don't know what
rule there is as to how long they are to remain there before
removal, if there is any."
The
Pullman conductor testifying said: "I saw him as I came
up to the train after it stopped, standing by a buggy. He, I
think, got up in the buggy about 20 or 25 feet from the
train. When conductor called, 'All aboard,' and the
train began moving off, he jumped from the buggy and ran and
caught the train at rear end of the car for colored people.
There were some trunks on track. I saw his danger and
hollowed to him to look out."
The
ordinary issues were submitted as to negligence, contributory
negligence, and damages. Verdict for plaintiff. Judgment.
Defendant excepted and appealed.
W. C.
Munroe, for appellant.
Aycock & Winston and J. D. Langston, for appellee.
HOKE,
J. (after stating the facts as above).
Railroad
companies in the performance of their duty as common carriers
are held to a high degree of care in providing at their
regular stations places and conditions by which passengers
may board and alight from their trains in safety, and in
keeping such places free from unnecessary obstructions which
threaten them harm. This obligation has been illustrated and
applied in several recent decisions of the court, as in
Smith v. Railroad, 147 N.C. 450, 61 S.E. 266, 17 L.
R. A. (N. S.) 179; Mangum v. Railroad, 145 N.C. 152,
153, 58 S.E. 913, 13 L. R. A. (N. S.) 589, 122 Am. St. Rep.
437; Pineus v. Railroad, 140 N.C. 450, 53 S.E. 297,
111 Am. St. Rep. 856. And the decisions in other
jurisdictions and text-writers of authority are in approval
of the principle. Ayers v. Railroad, 158 N.Y. 254,
53 N.E. 22; Railroad v. Reese, 93 Ill.App. 662;
Hutchinson on Carriers (3d Ed.) §§ 928-935.
In
Smith v. Railroad, supra, the court quotes with approval from
Hutchinson on Carriers, § 128, as follows: "It is the
duty of railway companies as carriers of passengers to
provide platforms, waiting rooms, and other reasonable
accommodations for such passengers at the stations upon such
roads at which they are in the habit of taking on and putting
off passengers. Their public profession as such carriers is
an invitation to the public to enter and alight from their
cars at their stations, and it has been held that they must
not only provide safe platforms and approaches thereto, but
that they are bound to make safe for all persons who may come
to such stations in order to become their passengers, or who
may be put off there by them, all portions of their station
grounds reasonably near to such platforms, and to which such
persons may be likely to go; and for not having provided such
stational accommodations and safeguards railway companies
have frequently been held liable for injuries to such
persons."
And in
Mangum's Case, supra, Associate Justice Brown, in
delivering the opinion, said: "It seems now to be almost
elementary that one of the recognized duties of a railway
company that undertakes to carry passengers is to keep its
station premises in a reasonably safe condition, so that
those who patronize it may pass safely to and from the cars.
Pineus v. Railroad, 140 N.C. 450, 53 S.E. 297, 111
Am. St. Rep. 856; Wood on Railways, 310, 1341, 1349. This
duty extends not only to the condition of the platform
itself, whereon passengers walk to and from the trains, but
also to the manner in which that platform is allowed by the
common carrier to be used. Weston v. Railroad Co.,
73 N.Y. 595; Wood on Railways, supra. The defendant owed a
duty to plaintiff, and to all other...
