Avery, J.,
after stating the facts: At the request of the defendant, the Court instructed the jury that the failure and refusal of the conductor to cause its passenger coach attached to its freight train to be drawn up to a point opposite the passenger platform, was not negligence. The plaintiff did not except, and it is insisted that the question whether it was a reasonable regulation to require passengers to get on board the train at a point so remote from the place used for passenger trains is now so far eliminated in the discussion of the defendant’s appeal that it cannot be considered even in determining whether, on the one hand there was, as insisted by the defendant, no evidence of negligence on the [42]*42pa,rt of its agents or servants, or whether, on the other, there was undisputed testimony showing that the proximate cause of the plaintiff’s injury was his own contributory negligence. This case must be distinguished from Rose v. Railroad (106 N. C., 168) and Pickens v. Railroad (104 N. C., 312), because the defendant company relies, among others, upon two exceptions, the consideration of either of which necessarily involves a review of all of the evidence tending to show negligence on the part of the defendant company. We cannot determine whether there was any evidence of negligence on the part of the defendant and eliminate from the discussion the question whether, in the exercise of ordinary care, the passenger coach should have been drawn up to the platform, because the plaintiff contends that the Court should have instructed the jury that the defendant was negligent in failing to give passengers an opportunity to get on at the platform. In passing upon the other exception also, it is insisted for the plaintiff that, though it may have appeared that he was negligent in waiting till the train was in motion before attempting to get on it, still the injury would have been avoided if the passenger coach had been stopped at the station. Deans v. Railroad, 107 N. C., 686. In both of the cases mentioned, the exceptions considered were addressed to questions growing out of particular portions of the testimony — not to the whole of it — and raised only the point whether there was undue force used in expelling a passenger.
It was not an unreasonable regulation of the company to require passengers to be received upon a coach attached to a freight train at some point other than the station or platform from which they usually enter its passenger cars, constituting a part of its passenger trains, but the space or route ordinarily traversed from the office w'here the ticket is procured to the place appointed for embarking should be kept in safe condition for transit, and passengers have a right to act upon the presumption that such way may be traversed without danger due to its defects. 2 Wood R. L., p. 1128 [43]*43(§ 305); Hurlburt v. Railroad, 40 N. Y., 145; Green v. Erie R. Co., 11 Hun. (N. Y), 333.
Our statute (The Code, § 1963) is, in so far as it affects this question, an affirmance of the general principle, as it requires railroad companies to run their trains of cars for the transportation of passengers and property at regular times, to be fixed by public notice, and carry such passengers as shall be offered “ tuithin a reasonable time” at “ the place of starting, the jwnctions of other roads, and the usual stopping places established for receiving and discharging way passengers and freights for that train.” In the plainest terms the law recognizes the right of the companies to determine their places of receiving and discharging passengers for each train, subject only to the proviso attached by law to which we have adverted. If the plaintiff’s injury was not caused by the failure of the defendant to use ordinary care in looking after the condition of the way from the ticket office to the cars, it incurred no liability by refusing to receive the plaintiff at the platform.
The general rule is that passengers who are injured while attempting to get on or off a moving train, cannot recover for the injury. Phillips v. Railroad Co., 49 N. Y., 177; 2 Beach L. R., § 987. But of course this, like all other general rules, is subject to some exceptions Where a train is stopped at a station, and, after passengers are told to go aboard, it is suddenly started before they have had time to do so, and when, without unreasonable delay, they are trying to get upon it, if a passenger who is in the act of getting upon the platform is injured by the sudden jerk of starting without a signal, the Court may submit the question of negligence to the jury, but the company is under no obligation to delay the departure of the train beyond the usual time because a passenger has purposely or negligently deferred getting on it till the last moment, though he has had abundant time to do so while it was standing still. Thompson on Cor. and Par., p. 225, § 16.
[44]*44In running its trains, the officers of a company ought always to be mindful of the fact that in order to insure the safety and subserve the interests of its patrons and accomplish the ends for which it was created, the corporation must move its trains, as far as possible, regularly and systematically. Hence, the statute which we have already cited affirms another common law principle in limiting the obligation to receive passengers to those who are offered or offer themselves within reasonable time.
The company would, iu any event, be liable for an injury wantonly or purposely inflicted by its officers. If the conductor saw the plaintiff approaching the train at his suggestion or invitation, and purposely gave the signal to move when he was in the act of ascending the steps of the platform, the company was liable for any injury sustained by the latter. But when the train had been stopped for the usual time, unless the number of passengers who debarked •or embarked at the station was so great as to require a longer stop in order to insure the safety of its patrons, the conductor, though he had told a dilatory passenger that he must not get on at a certain point, was not bound, in order to relieve the company of liability, to look after his movements and refrain from giving the signal to the engineer to move until assured that be was seated on board the train.
We think that there was error in the failure of the Court, in response to the request of the defendant, to present clearly to the jury the well established principle that, after holding the train long enough to disembark and receive passengers, the conductor was not bound to look to the safety of the plaintiff (though he may have told him he ought to get on)' and to delay giving the signal till he saw the plaintiff enter the coach.
The company would have been liable, unquestionably, if the invitation of the conductor to get on the train had been extended when the train was already in motion instead of before giving the signal to leave at the usual time. It is [45]*45equally clear that the jury might have been misled by the statement of the law in reference to contributory negligence by the Court. The Judge should have told them, as requested, that the fact of getting on a moving train was, as a general rule, evidence of contributory negligence, and that proposition should have been stated without qualification other than such as was manifestly suggested by and applicable to the evidence in the case at bar. 2 Beach R. L., § 987; 2 Wood’s R. K, 1154; Wharton on Neg., §369.
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Avery, J.,
after stating the facts: At the request of the defendant, the Court instructed the jury that the failure and refusal of the conductor to cause its passenger coach attached to its freight train to be drawn up to a point opposite the passenger platform, was not negligence. The plaintiff did not except, and it is insisted that the question whether it was a reasonable regulation to require passengers to get on board the train at a point so remote from the place used for passenger trains is now so far eliminated in the discussion of the defendant’s appeal that it cannot be considered even in determining whether, on the one hand there was, as insisted by the defendant, no evidence of negligence on the [42]*42pa,rt of its agents or servants, or whether, on the other, there was undisputed testimony showing that the proximate cause of the plaintiff’s injury was his own contributory negligence. This case must be distinguished from Rose v. Railroad (106 N. C., 168) and Pickens v. Railroad (104 N. C., 312), because the defendant company relies, among others, upon two exceptions, the consideration of either of which necessarily involves a review of all of the evidence tending to show negligence on the part of the defendant company. We cannot determine whether there was any evidence of negligence on the part of the defendant and eliminate from the discussion the question whether, in the exercise of ordinary care, the passenger coach should have been drawn up to the platform, because the plaintiff contends that the Court should have instructed the jury that the defendant was negligent in failing to give passengers an opportunity to get on at the platform. In passing upon the other exception also, it is insisted for the plaintiff that, though it may have appeared that he was negligent in waiting till the train was in motion before attempting to get on it, still the injury would have been avoided if the passenger coach had been stopped at the station. Deans v. Railroad, 107 N. C., 686. In both of the cases mentioned, the exceptions considered were addressed to questions growing out of particular portions of the testimony — not to the whole of it — and raised only the point whether there was undue force used in expelling a passenger.
It was not an unreasonable regulation of the company to require passengers to be received upon a coach attached to a freight train at some point other than the station or platform from which they usually enter its passenger cars, constituting a part of its passenger trains, but the space or route ordinarily traversed from the office w'here the ticket is procured to the place appointed for embarking should be kept in safe condition for transit, and passengers have a right to act upon the presumption that such way may be traversed without danger due to its defects. 2 Wood R. L., p. 1128 [43]*43(§ 305); Hurlburt v. Railroad, 40 N. Y., 145; Green v. Erie R. Co., 11 Hun. (N. Y), 333.
Our statute (The Code, § 1963) is, in so far as it affects this question, an affirmance of the general principle, as it requires railroad companies to run their trains of cars for the transportation of passengers and property at regular times, to be fixed by public notice, and carry such passengers as shall be offered “ tuithin a reasonable time” at “ the place of starting, the jwnctions of other roads, and the usual stopping places established for receiving and discharging way passengers and freights for that train.” In the plainest terms the law recognizes the right of the companies to determine their places of receiving and discharging passengers for each train, subject only to the proviso attached by law to which we have adverted. If the plaintiff’s injury was not caused by the failure of the defendant to use ordinary care in looking after the condition of the way from the ticket office to the cars, it incurred no liability by refusing to receive the plaintiff at the platform.
The general rule is that passengers who are injured while attempting to get on or off a moving train, cannot recover for the injury. Phillips v. Railroad Co., 49 N. Y., 177; 2 Beach L. R., § 987. But of course this, like all other general rules, is subject to some exceptions Where a train is stopped at a station, and, after passengers are told to go aboard, it is suddenly started before they have had time to do so, and when, without unreasonable delay, they are trying to get upon it, if a passenger who is in the act of getting upon the platform is injured by the sudden jerk of starting without a signal, the Court may submit the question of negligence to the jury, but the company is under no obligation to delay the departure of the train beyond the usual time because a passenger has purposely or negligently deferred getting on it till the last moment, though he has had abundant time to do so while it was standing still. Thompson on Cor. and Par., p. 225, § 16.
[44]*44In running its trains, the officers of a company ought always to be mindful of the fact that in order to insure the safety and subserve the interests of its patrons and accomplish the ends for which it was created, the corporation must move its trains, as far as possible, regularly and systematically. Hence, the statute which we have already cited affirms another common law principle in limiting the obligation to receive passengers to those who are offered or offer themselves within reasonable time.
The company would, iu any event, be liable for an injury wantonly or purposely inflicted by its officers. If the conductor saw the plaintiff approaching the train at his suggestion or invitation, and purposely gave the signal to move when he was in the act of ascending the steps of the platform, the company was liable for any injury sustained by the latter. But when the train had been stopped for the usual time, unless the number of passengers who debarked •or embarked at the station was so great as to require a longer stop in order to insure the safety of its patrons, the conductor, though he had told a dilatory passenger that he must not get on at a certain point, was not bound, in order to relieve the company of liability, to look after his movements and refrain from giving the signal to the engineer to move until assured that be was seated on board the train.
We think that there was error in the failure of the Court, in response to the request of the defendant, to present clearly to the jury the well established principle that, after holding the train long enough to disembark and receive passengers, the conductor was not bound to look to the safety of the plaintiff (though he may have told him he ought to get on)' and to delay giving the signal till he saw the plaintiff enter the coach.
The company would have been liable, unquestionably, if the invitation of the conductor to get on the train had been extended when the train was already in motion instead of before giving the signal to leave at the usual time. It is [45]*45equally clear that the jury might have been misled by the statement of the law in reference to contributory negligence by the Court. The Judge should have told them, as requested, that the fact of getting on a moving train was, as a general rule, evidence of contributory negligence, and that proposition should have been stated without qualification other than such as was manifestly suggested by and applicable to the evidence in the case at bar. 2 Beach R. L., § 987; 2 Wood’s R. K, 1154; Wharton on Neg., §369. From the plaintiff’s own testimony it appears that he was first warned by Rod-well, the defendant’s agent, to get on the train, and notified that it would leave soon, but, instead of acting on the suggestion of the agent, he manifested a disposition to stand upon his supposed legal rights. The conductor (Lassiter) then said, according to plaintiff’s own statement, that if he “ rode on that train, he would have to go where the passenger coach was then standing.” This language could not be fairly construed as a command to get on the train, but it was simply a warning that he must comply with the regulation “if he rode on that train.” The plaintiff was prima facie negligent in getting upon a moving train, and, in order to relieve himself of the onus placed upon him, ought to have shown either that he went in obedience to an unequivocal invitation or command not to get upon a train standing still, but already in motion, and in obeying the order or accepting the invitation he did not expose himself to manifest danger, or that the conductor did not stop at the station a sufficient time to allow passengers to get on and off. Wharton on N4g., § 369. After admitting that he got upon a moving train, the burden was upon the plaintiff to bring himself under some exception to the general rule that such conduct is contributory negligence and will be deemed the proximate cause of any injury received in doing so. Malcom v. Railroad, 106 N. C., 63; 2 Wood’s R. L., p. 1126, §305; 2 Beach R. L., supra; Chambers v. Railroad, 91 N. C., 471; Smith v. Railroad, 99 N. C., 241.
[46]*46Upon the plaintiff’s own testimony, or upon a review of the whole testimony, there is no such evidence of a command as to warrant the charge given by the Court or to go to the jury as tending to show that the injury was not caused by the plaintiff’s own negligence in getting upon the train while in’motion. There is no testimony tending to show that,-by the exercise of ordinary care, the defendant could have prevented or avoided the injury.
If it were necessary, we might rest our ruling upon the additional ground that the instruction given to the jury in reference to the question whether the plaintiff’s injury was proximately caused by intoxication and consequent inability to get upon the car with his valise in hand was not fully responsive to the request of defendant. But it is unnecessary to discuss that question, as it is to advert to the exception that there was no evidence to warrant the charge predicated upon the ground that the injury might have been caused by an “unusual jerk” in starting the train.
There was error, for which a new trial must be granted.
Error.