Suttle v. Southern Rt. Co

• Decision Date: 19 May 1909
• Citation: 150 N. C. 668,64 S.E. 778
• Court: North Carolina Supreme Court
• Parties: SUTTLE. v. SOUTHERN RT. CO.

64 S.E. 778

(150 N. C. 668)

SUTTLE.

v.SOUTHERN RT. CO.

Supreme Court of North Carolina.

May 19, 1909.

1. Carriers (§ 280^*)—Carriage of Passengers—Care Required.

A passenger on a freight train, to which a passenger coach is attached, is entitled to the highest degree of care of which such trains are susceptible, and while the difference in the character and purpose of the trains should be given due consideration, in reference to their proper management, there is no relaxation as to the degree of care required towards a passenger.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 1087; Dec. Dig. § 280.*]

2. Carriebs (§ 318^2-*)—Injubies to Passen-gebs—Negligence.

In an action for injuries to a passenger on a mixed train caused by giving the passenger coach a sudden and unusual jolt, evidence held to show the carrier's actionable negligence.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 1307; Dec. Dig. § 318.*]

3. Carriers (§ 325*)—Passengebs—Cabe Re-qu1bed of passengers.

A passenger on a mixed train must exercise care commensurate with the increased dangers ordinarily incident to the management of such trains, but he is entitled to have his conduct determined in reference to such trains when properly managed, and he is not required to anticipate extraordinary dangers incident to the carrier's negligence.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 1348; Dec. Dig. § 325.*]

4. Cabbiers (§ 347*)—Passengebs—Care Re-quibed of Passengers.

A passenger on a mixed train who leaves his seat in the passenger coach to get a drink of water while the coach is standing still and cars are being shifted is not negligent as matter of law, but his negligence is ordinarily for the jury.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 1402; Dec. Dig. § 347.*]

5. Carriers (§ 332*)—Passengebs—Cabe Re-quired op Passengers.

Where a passenger on a mixed train left his seat in the coach to get a drink of water while the coach was standing still, and while cars were being shifted, and at a time when there was no reason to expect that any harm would ensue, and no harm would have ensued if the trainmen had properly managed the train, the passenger was not guilty of contributory negligence precluding a recovery for injuries received by the coach receiving an unusual and sudden jolt by shifting cars.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1383-1384; Dec. Dig. § 332.*]

Appeal from Superior Court, Buncombe County; Ward, Judge.

Action by D. D. Suttle against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The evidence tended to show that on or about October 8, 1905, plaintiff was a passenger on a mixed train of defendant company, a freight train having a passenger coach attached, from Shelby to Asheville, N. C, and while in the coach he was knocked down and seriously injured by a sudden and unusual jolt given by defendant's employes in shifting other cars of the train which had been detached. Speaking of the occurrence, the plaintiff testified, in part, as follows: "Q. Did you get hurt at any time while on that trip? A. Yes; we run out six miles to a little station called Washburn, and they stopped, and, after stopping, they cut the coach that I was in loose from the freight—it was a mixed train—and they were shifting some cars out, and, while my coach was standing there, I went to the water-closet to get some water, and just as I was in the act of getting hold of the dipper the freight struck the front end of the coach, and I was standing in about four feet of the corner post of the water-closet, and that post struck me on the side of the head here, and the blood ran down, and there was the back of a seat right to my left and that was shelving towards me, and, when I fell, it bent my back over that, and from there I rolled over into the aisle, and I laid there about a minute and a half, and while I was down I could not move or speak. And there was One of the train hands in there working on his books, and, after I had laid there some time, he asked me if I was hurt, and I did not answer him—I could not answer—and, after I revived a little, I made an effort to raise my right arm up and could not move it, and then I took hold with my left hand and got hold of this seat in front of me and failed to do it, and then I asked him if he would help me up, and he came and helped me up, and as I went back to my seat I noticed most of the cushions off of the seats on the floor, and my seat was that way. The lick was so heavy that it had driven the seats from under the cushions, and many of the cushions were on the floor. After I got in my seat, I was sitting holding to the seat in front of me and they slashed into it again, and I hollered, and the flagman, or whoever it was that was in there with me, jumped up and ran out, and from that on there was no further trouble with the train. Q. You say they 'slashed' into it? A. I mean that the freight cars that were shifting, the cars that were making some change, and while I was standing— Q. You say that they 'slashed' into you. The jury don't know what that means. A. They backed into it with such force. Q. With how much force did they come back the second time? A. Equally as much as the first time or more." At the close of plaintiff's testimony defendant moved to nonsuit plaintiff, motion denied, and defendant excepted. Under a proper charge the question of defendant's responsibility was submitted on the three ordinary issues in actions of negligence: "(1) As to negligence of defendant causing the injury. (2) Contributory negligence on part of plaintiff. (3) Damages." There was verdict in favor of plaintiff, and, from judgment on the verdict, defendant excepted and appealed.

Moore & Rollins, for appellant.

Adams & Adams, Frank Carter, and H. C. Chedester, for appellee.

HOKE, J. (after stating the facts as above). There has been no error committed in the trial of this case which gives the defendant any just ground of complaint.

Where a person has been received as a passenger on one of these mixed trains, whether in a passenger coach or caboose or a car temporarily fitted for the purpose, he is entitled to the highest degree of "care and diligence of which such trains are susceptible." While the difference in the characterand purposes of the trains may, and should, be given due consideration in reference to their proper management and control, there is no relaxation as to the degree of care required towards a passenger on the part of the company's employes, and for a breach of duty of the kind indicated the company may be held responsible. Miller v. Railroad, 144 N. C. 545, 57 S. E. 345; Railroad, v. Horst, 93 U. S. 291, 23 L. Ed. 898; Sprague v. Railway, 92 Fed. 59, 34 C. C. A. 207; Railroad v. Hol-comb, 44 Kan. 332, 24 Pac. 467. In Sprague v. Railway, supra, Goff, Circuit Judge, for the court, quotes with approval from Railroad v. Horst, supra, and in reference to this matter said: "The court below seems to have founded its conclusion on the fact that the plaintiffs were traveling in a caboose car, and not on a regular passenger train. But we are of opinion that as the defendant sold tickets to the plaintiffs to be used in said car, which was provided for the accommodation of passengers in general, the plaintiffs were entitled to demand and have of and from the defendant the highest possible degree of care and diligence, regardless of the kind of train they were on. A railroad company is liable for the negligence of its servants, resulting injuriously to its passengers, whether they are traveling in the luxurious cars of the modern train or in the uncomfortable caboose of the local...