Ruffin v. Atlantic & N.C.R. Co.

• Citation: 55 S.E. 86,142 N.C. 120
• Parties: RUFFIN v. ATLANTIC & N.C. R. CO.
• Decision Date: 25 September 1906
• Court: United States State Supreme Court of North Carolina

55 S.E. 86

142 N.C. 120

RUFFIN v. ATLANTIC & N.C. R. CO.

Supreme Court of North Carolina

September 25, 1906

Appeal from Superior Court, Carteret County; Long, Judge.

Action by Thomas Ruffin against the Atlantic & North Carolina Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

An instruction in a personal injury action, which authorizes the recovery of damages for past and prospective loss resulting from the negligent act, and that damages may embrace indemnity for actual expenses incurred in nursing and medical attention, loss of time, loss from ability to perform labor or a capacity to earn money, and for actual suffering in body and mind, which are the immediate and necessary consequences of the injuries complained of, and which states that the court gives the instruction as laid down in a Supreme Court decision, is not objectionable as not applying the law to the facts.

This action is prosecuted by plaintiff for the purpose of recovering damages for personal injuries sustained by him while a passenger upon defendant's train. Defendant denied negligence, and for further answer alleged that the injury was "caused by the negligence of plaintiff, in that on the night in question he was under the influence of liquor and thereby contributed to his own hurt, and that plaintiff failed to act as a prudent man in alighting from said train." Defendant tendered an issue directed to plaintiff's alleged contributory negligence, which his honor declined to submit, and defendant excepted. His honor submitted the following issue: "Was plaintiff injured by defendant's negligence as alleged?" together with an inquiry as to damages. There was evidence tending to show that plaintiff went upon defendant's train at New Bern as a passenger, for the purpose of going to Morehead City thence by boat to Beaufort. He boarded the train at New Bern on the north side of the car. Before reaching Morehead, the train was turned around upon a Y, thereby backing into Morehead. The custom, up to a short time before the day of the injury, had been to pull into the depot. This was known to plaintiff, but he had no notice of the change. Defendant maintained a pier at Morehead, running into and over the waters of Bogue Sound. Passengers left the train on said pier, taking a boat to Beaufort. There was, upon the pier, an elevated platform between two railroad tracks. The platform was built for the accommodation of passengers, with approaches leading to and from it. On either side of the platform were trestles used exclusively for trains other than passenger. The spaces between the cross-ties on the trestles were open. There was no evidence of negligence in the construction of the platform. There was evidence tending to show that there were lights on the platform side of the train, but none on the ocean or south side. When the train backed upon the pier plaintiff left the car on that side, and after making one or two steps fell between the cross-ties and was injured. He did not know that the train had been turned around. He knew of the conditions on the pier at Morehead. There was no railing on the platform, or on the car, to prevent passengers alighting on the ocean side, nor was he warned not to get off on that side. There was evidence that plaintiff "was under the influence of liquor, not very much." The evidence was conflicting in regard to plaintiff being directed to get off on "platform side." There was evidence that the same condition on pier had existed for many years. The evidence regarding sufficiency of lights was conflicting. There were no lights on ocean side. Passengers were not expected to leave the train on that side. There were exceptions to his honor's rulings upon the admission of testimony and instructions given and refused, which are set out in the opinion. There was a verdict for plaintiff. Judgment and appeal.

C. L. Abernethy, for appellant.

D. L. Ward and M. De Wit Stevenson, for appellee.

CONNOR J. (after stating the case.)

The defendant insists that his honor committed error in refusing to submit to the jury an issue in regard to plaintiff's alleged contributory negligence. It was held in Scott v. Railroad, 96 N.C. 428, 2 S.E. 151, that when the court fully explained to the jury the several phases of the testimony relied upon to show contributory negligence and it was apparent that defendant had, in that way, been given the benefit of such testimony with its application, an omission to submit the issue was not reversible error. Since the decision of that case the statute was enacted requiring defendant to specially plead such negligence and thereby assume the burden of showing it. Revisal 1905, § 483. While we think it the better practice, and suggest that the issue in regard to contributory negligence, when pleaded, and there is evidence to sustain the plea, be submitted, we adhere to what is said upon the subject in Wilson v. Cotton Mills, 140 N.C. 52, 52 S.E. 250, and the cases therein cited.

Both sides submitted prayers for special instructions, several of which his honor gave. Among others he instructed them as follows: "(1) If you should find that the defendant company ran its train upon the Y about a mile from its station at Morehead City and reversed its engine and cars and backed its train into Morehead City and to its terminal at its pier, but informed the plaintiff that it had reversed its cars, aforesaid, this of itself would not make the defendant negligent. (2) If you find from the evidence that the defendant company ran its cars upon the Y about a mile from its station at Morehead City and reversed its engine and cars and backed its train into Morehead City and to its terminal at its pier without informing the plaintiff that it had reversed its cars and you still further find that the plaintiff in alighting from said train on the night of the alleged injury failed to exercise the ordinary care of a prudent person in like circumstances in alighting from said car and did not look or take notice of any danger, then plaintiff could not recover. It was the duty of the plaintiff to have acted the part of a prudent person in getting on and off the train, and if he did not act like a prudent person, then he cannot recover, if such failure if found by you was the cause of his injury." There can be no just criticism of the proposition involved in these instructions. The expression "he cannot recover" should not be used. The instruction should conclude in directing the jury to answer the issue accordingly, as they find. They clearly present the debated questions involving both plaintiff's and defendant's conduct.

He further charged: "(3) If you find from the evidence on the night of the alleged injury that the plaintiff was under the influence of liquor and that that was the cause of his failure to get off on the right side of the train and he thereby directly contributed to his own hurt, the plaintiff would be guilty of contributory negligence and you would answer the first issue, 'No.' Even if the defendants were guilty of negligence and the plaintiff was under the influence of liquor and intoxicated, and thereby contributed directly to his hurt, then the plaintiff cannot recover." Defendant excepts to the use of the word "directly" by his honor, insisting that it is not synonymous with ""proximately." Our attention is called to several decisions in which it is held that the terms are not synonymous. We can well understand that, in some cases, the testimony may be such as to present the distinction urged by counsel, but in the connection in which it is used by his honor we cannot think that the jury could have been misled to defendant's prejudice. It occurs to us that plaintiff would have better cause to complain in this respect than defendant.

His honor further instructed the jury: "(4) It was the duty of the plaintiff in alighting from the cars on the night in question to look and see if he were getting off on the...