AixbN, J.
At the conclusion of the evidence the defendant moved for judgment of nonsuit, upon three grounds:
(1) That there was no evidence of negligence on the part of the defendant, causing injury to the plaintiff.
(2) That the plaintiff was guilty of contributory negligence, on his own evidence.
(3) That the plaintiff was injured while riding on the platform of the train, in violation of section 2628 of the Revisal.
In the determination of this motion, we must accept the evidence of the plaintiff as true, and, guided by the rule of the “prudent man,” which is the standard, must consider not only the evidence of the witnesses, but also the situation of the parties and the circumstances surrounding them.
The plaintiff was a passenger on a train carrying passengers and freight, and as such assumed the usual risks incident to traveling on such trains, when managed by prudent and careful men in a careful manner (Marable v. R. R., 142 N. C., 563; Usury v. Watkins, 152 N. C., 760); but he was entitled to the highest degree of care of which such trains are susceptible, and had the right to assume that the employees of the defendant would perform their duties and that the train would be operated with care. Suttle v. R. R., 150 N. C., 673. The train had reached Eranklinton, which was a terminus of the line, and had stopped at the usual place for passengers to leave the train. This [527]*527was evidence of an invitation to aligbt. Nance v. R. R., 94 N. C., 619; Denny v. R. R., 132 N. C., 340; R. R. v. Cousler, 97 Ala., 235; Roub v. R. R., 103 Cal., 473; Fetter on Carriers, sec. 58.
• When tbe train reached its destination, it was tbe duty of tbe defendant to exercise tbe highest degree of care practicable, and to give tbe plaintiff sufficient time and opportunity to leave tbe train, and if it failed to do so, and there was a sudden start of tbe train as be was alighting, this would be negligence. Hutchinson on Carriers, sec. 1118; Smith v. R. R., 147 N. C., 450.
If passengers could leave tbe train on either side, and one side was more dangerous than tbe other, it was tbe duty of tbe defendant to have some employee present to advise tbe passengers. Ruffin v. R. R., 142 N. C., 128.
It was also tbe duty of tbe plaintiff to leave the’train with reasonable promptness, and to exercise tbe care of a person of ordinary prudence in doing so, and if be failed in this duty be was negligent.
These are tbe duties imposed by law upon tbe plaintiff and defendant respectively, and wben considered in connection with tbe evidence of tbe plaintiff, viewed in tbe light most favorable to him, as it is our duty to do in passing on a motion to nonsuit, we are of opinion that there was evidence of negligence on tbe part of tbe defendant, and that tbe plaintiff could not be declared guilty of contributory negligence as matter of law.
According to tbe evidence of tbe plaintiff, tbe train bad reached its destination and bad stopped at the usual place for passengers to aligbt; no step for passengers was placed on either side of tbe train, and no employee of tbe defendant was present to advise or assist, and while be was getting off tbe train with reasonable promptness there was a sudden movement of tbe train, which injured him.
This is undoubtedly evidence of negligence. Mpore on Carriers, p. 674; Hutchison on Carriers, sec. 1118; Nance v. R. R., 94 N. C., 619; Tillett v. R. R., 118 N. C., 1031; Smith v. R. R., 147 N. C., 450.
When tbe train stopped, tbe plaintiff was sitting on tbe platform, and be immediately attempted to get off on tbe side oppo[528]*528site the passenger station. He had been a frequent passenger on the train and usually got off on this side, as did a majority of the passengers, and without any objection from the defendant. He did not rise to his feet, but held on to the iron railing and slided off, and after his feet reached the ground and he was getting in an erect position, or, as he says, straightening up, the sudden movement of the train injured him.
We are not prepared to hold, as matter of law, that it is negligence for a passenger, 69 years of age, when alighting from a train in the night, to let himself to the ground gradually and slowly, and particularly so in view of the fact that he had the right to assume that the defendant would not be negligent, and that the train would not move before he was given a reasonable time to get off; nor can we say it was negligent to get- off on the side he did, when it was in evidence that he had done so repeatedly, without objection by the defendant, and that passengers usually got off on that side.
His Honor gave to the defendant all it was entitled to on the question of contributory negligence when he instructed the jury, in substance, that the plaintiff was negligent if he failed to exercise the care of one of ordinary prudence similarly situated.
If, however, it should be held that there is evidence of negligence on the part of the plaintiff, this would not prevent a recovery unless it was contributory, and it could not be contributory unless a real proximate cause of the injury, and according to the evidence of the plaintiff, if believed, the real cause was the negligent act of the defendant in moving its train while the plaintiff was alighting.
The principle is applied by Justice Brown in Darden v. R. R., 144 N. C., 1, to one attempting to alight from a train in motion, which was stronger evidence of contributory negligence than is shown by the plaintiff’s evidence, and he there says: “It is useless to discuss the alleged negligence of the plaintiff in attempting to alight from a moving train, for if his evidence is to be believed, the proximate cause of his injury in being thrown to the ground was the premature signaling to the engineer by the brakeman to Go ahead.’ ' Had it not been for the brakeman’s negligence, the plaintiff would doubtless have stepped safely to the ground.”
[529]*529Tbe situation of tbe plaintiff at tbe time of bis injury, if bis evidence is believed, was not a cause, but a mere condition, and tbe distinction between tbe two is well, recognized. In Black v. R. R., 193 Mass., 450, tbe Court, speaking of this distinction, says; “Negligence of a plaintiff at tbe time of an injury caused by tbe negligence of another is no bar to bis recovery from tbe other, unless it was a direct, contributing cause to tbe injury, as distinguished from a mere condition, in tbe absence of which tbe injury would not have occurred. . . . Tbe application of this rule sometimes gives rise to difficult questions. But in this connection tbe doctrine has been established' that, when tbe plaintiff’s negligence or wrongdoing has placed-bis person or property in a dangerous situation which is beyond bis immediate control, and tbe defendant, having full knowledge of tbe dangerous situation, and full opportunity, by tbe exercise of reasonable care, to avoid any injury, nevertheless causes an injury, be is liable for tbe injury. This is because tbe plaintiff’s former negligence is only remotely connected with tbe accident, while tbe defendant’s conduct is tbe sole, direct, and proximate cause of it.”
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AixbN, J.
At the conclusion of the evidence the defendant moved for judgment of nonsuit, upon three grounds:
(1) That there was no evidence of negligence on the part of the defendant, causing injury to the plaintiff.
(2) That the plaintiff was guilty of contributory negligence, on his own evidence.
(3) That the plaintiff was injured while riding on the platform of the train, in violation of section 2628 of the Revisal.
In the determination of this motion, we must accept the evidence of the plaintiff as true, and, guided by the rule of the “prudent man,” which is the standard, must consider not only the evidence of the witnesses, but also the situation of the parties and the circumstances surrounding them.
The plaintiff was a passenger on a train carrying passengers and freight, and as such assumed the usual risks incident to traveling on such trains, when managed by prudent and careful men in a careful manner (Marable v. R. R., 142 N. C., 563; Usury v. Watkins, 152 N. C., 760); but he was entitled to the highest degree of care of which such trains are susceptible, and had the right to assume that the employees of the defendant would perform their duties and that the train would be operated with care. Suttle v. R. R., 150 N. C., 673. The train had reached Eranklinton, which was a terminus of the line, and had stopped at the usual place for passengers to leave the train. This [527]*527was evidence of an invitation to aligbt. Nance v. R. R., 94 N. C., 619; Denny v. R. R., 132 N. C., 340; R. R. v. Cousler, 97 Ala., 235; Roub v. R. R., 103 Cal., 473; Fetter on Carriers, sec. 58.
• When tbe train reached its destination, it was tbe duty of tbe defendant to exercise tbe highest degree of care practicable, and to give tbe plaintiff sufficient time and opportunity to leave tbe train, and if it failed to do so, and there was a sudden start of tbe train as be was alighting, this would be negligence. Hutchinson on Carriers, sec. 1118; Smith v. R. R., 147 N. C., 450.
If passengers could leave tbe train on either side, and one side was more dangerous than tbe other, it was tbe duty of tbe defendant to have some employee present to advise tbe passengers. Ruffin v. R. R., 142 N. C., 128.
It was also tbe duty of tbe plaintiff to leave the’train with reasonable promptness, and to exercise tbe care of a person of ordinary prudence in doing so, and if be failed in this duty be was negligent.
These are tbe duties imposed by law upon tbe plaintiff and defendant respectively, and wben considered in connection with tbe evidence of tbe plaintiff, viewed in tbe light most favorable to him, as it is our duty to do in passing on a motion to nonsuit, we are of opinion that there was evidence of negligence on tbe part of tbe defendant, and that tbe plaintiff could not be declared guilty of contributory negligence as matter of law.
According to tbe evidence of tbe plaintiff, tbe train bad reached its destination and bad stopped at the usual place for passengers to aligbt; no step for passengers was placed on either side of tbe train, and no employee of tbe defendant was present to advise or assist, and while be was getting off tbe train with reasonable promptness there was a sudden movement of tbe train, which injured him.
This is undoubtedly evidence of negligence. Mpore on Carriers, p. 674; Hutchison on Carriers, sec. 1118; Nance v. R. R., 94 N. C., 619; Tillett v. R. R., 118 N. C., 1031; Smith v. R. R., 147 N. C., 450.
When tbe train stopped, tbe plaintiff was sitting on tbe platform, and be immediately attempted to get off on tbe side oppo[528]*528site the passenger station. He had been a frequent passenger on the train and usually got off on this side, as did a majority of the passengers, and without any objection from the defendant. He did not rise to his feet, but held on to the iron railing and slided off, and after his feet reached the ground and he was getting in an erect position, or, as he says, straightening up, the sudden movement of the train injured him.
We are not prepared to hold, as matter of law, that it is negligence for a passenger, 69 years of age, when alighting from a train in the night, to let himself to the ground gradually and slowly, and particularly so in view of the fact that he had the right to assume that the defendant would not be negligent, and that the train would not move before he was given a reasonable time to get off; nor can we say it was negligent to get- off on the side he did, when it was in evidence that he had done so repeatedly, without objection by the defendant, and that passengers usually got off on that side.
His Honor gave to the defendant all it was entitled to on the question of contributory negligence when he instructed the jury, in substance, that the plaintiff was negligent if he failed to exercise the care of one of ordinary prudence similarly situated.
If, however, it should be held that there is evidence of negligence on the part of the plaintiff, this would not prevent a recovery unless it was contributory, and it could not be contributory unless a real proximate cause of the injury, and according to the evidence of the plaintiff, if believed, the real cause was the negligent act of the defendant in moving its train while the plaintiff was alighting.
The principle is applied by Justice Brown in Darden v. R. R., 144 N. C., 1, to one attempting to alight from a train in motion, which was stronger evidence of contributory negligence than is shown by the plaintiff’s evidence, and he there says: “It is useless to discuss the alleged negligence of the plaintiff in attempting to alight from a moving train, for if his evidence is to be believed, the proximate cause of his injury in being thrown to the ground was the premature signaling to the engineer by the brakeman to Go ahead.’ ' Had it not been for the brakeman’s negligence, the plaintiff would doubtless have stepped safely to the ground.”
[529]*529Tbe situation of tbe plaintiff at tbe time of bis injury, if bis evidence is believed, was not a cause, but a mere condition, and tbe distinction between tbe two is well, recognized. In Black v. R. R., 193 Mass., 450, tbe Court, speaking of this distinction, says; “Negligence of a plaintiff at tbe time of an injury caused by tbe negligence of another is no bar to bis recovery from tbe other, unless it was a direct, contributing cause to tbe injury, as distinguished from a mere condition, in tbe absence of which tbe injury would not have occurred. . . . Tbe application of this rule sometimes gives rise to difficult questions. But in this connection tbe doctrine has been established' that, when tbe plaintiff’s negligence or wrongdoing has placed-bis person or property in a dangerous situation which is beyond bis immediate control, and tbe defendant, having full knowledge of tbe dangerous situation, and full opportunity, by tbe exercise of reasonable care, to avoid any injury, nevertheless causes an injury, be is liable for tbe injury. This is because tbe plaintiff’s former negligence is only remotely connected with tbe accident, while tbe defendant’s conduct is tbe sole, direct, and proximate cause of it.”
Nor do we think tbe fact that tbe plaintiff was on tbe platform immediately before bis injury bars a recovery under section 2628 of tbe Eevisalj which reads as follows: “In case any passenger on any railroad shall be injured while on the platform of a car, or on any baggage, wood, or freight car, in violation of the printed regulations of the company posted up at the time in a conspicuous place inside tbe passenger cars then in the train, such company shall not be liable for tbe injury: Provided, said company at the time furnish room inside its passenger cars sufficient for the proper accommodation of its passengers.”
Tbe ease does not come within tbe letter or spirit of tbe. statute, because tbe plaintiff was not injured “while on tbe platform,” nor was be at tbe time of bis injury violating tbe printed regulations of the defendant which prohibit passengers from going on tbe platform only when the car is in motion.
Tbe statute was intended for tbe protection of passengers and railroads, and should be reasonably construed, and there, is as much reason for saying that a passenger who remains in bis [530]*530seat until the train stops, and is injured as he is stepping from the train, is injured “while on the platform,” as there is for that construction to be placed on the plaintiff’s version of his conduct.
As was said in Shaw v. R. R., 143 N. C., 315, and affirmed in Smith v. R. R., 147 N. C., 451: “The statute, in plain terms, relieves the company from liability in the case of a passenger injured while on the platform of a moving train, when the company, as in this case, has complied with its terms,” and as the train "jvas not in motion at the time of his injury, the statute has no application under the circumstances in this case.
Nor did the fact that the plaintiff had been on the platform have anything to do with his injury. If lie had lost his rights as a passenger because violating the statute, the train, according to his evidence, had stopped, and he then had the right to get off, and if in doing so he was injured by the negligence of the defendant, his being on the platform prior to that time was not even a contributing cause.
The language used by the Court in Wood v. R. R., 49 Mich., 372, is in point: “It is claimed that it was negligent on the part of the plaintiff in going onto and standing upon the car platform and steps while the car was in motion. This may be true and might have prevented a recovery had the plaintiff been injured while standing there before the train stopped. Such, however, was not the fact, and his standing there neither caused nor contributed to the injury, other than by enabling the plaintiff to step off the train immediately upon its coming to a stop. Upon the stopping of the train he had then a right to get off, whatever his position up to that time may have been, and the danger of his position up to then cannot be charged against him, if he then, in the usual and customary manner and place, attempted to get off.”
His Honor charged the jury on this phase of the case as follows : “My attention has been called to a statute passed by the Legislature, which I will read to you: Un case any passenger on any railroad shall be injured while on the platform of a car, or any baggage, wood, or freight car, in violation of printed regulations of the company, posted at the time in a conspicuous [531]*531place inside its passenger cars then in the train, such company shall not be liable for the injury: Provided, said company at the time furnished room inside its passenger cars sufficient for the proper accommodation of its passengers.’ It is admitted, gentlemen, that the notices which have been introduced, one placed on the outside of the passenger coach which reads, ‘Passengers not allowed to stand on the platform,’ and notices posted inside the coach, ‘Passengers are prohibited from going on platforms or between cars while the train is in motion, and are warned not to allow their heads or limbs to project from car windows.’ The defendant company cannot make a contract which would excuse it from responsibility for its own negligence; neither could it make rules or regulations for the movement and control of its trains which would excuse it from its own negligence; but the Legislature has seen proper to pass a law which prohibits a passenger from recovering if he stands on the platform, if he is injured while on the platform, contrary to notices which are posted. So that, if you should find from the evidence that the plaintiff went out and stood upon the platform, or sat down on the platform with his feet on the steps, while the train was in motion; and while it was in motion, he having placed himself there in violation of a notice, he is prohibited by the statute from recovering, if he received injury while on the platform. And that means, not simply if he might get his hand mashed by the cars coming together, but if he placed himself there so that he was thrown from that place to the ground by the ordinary movement of the cars, he would be prohibited from recovering by reason of the notice, and it would be your duty to answer the second issue ‘Yes,’ whatever you might -find as to the first; for, although the defendant might have been negligent in not moving its train with proper skill and proper care, still, under the law and the posted notices, its engineer could not anticipate that a passenger could be standing on the platform, and if he were standing or sitting there and the train in motion, and were thrown out, he could not recover. But although you might find that he went out and sat down on the platform while the train was in motion, and he remained there without injury until the train stopped, if you find it did [532]*532stop, and when it stopped at the usual place of stopping the train for passengers to aligbt from tbe train, while it was stationary, and before be bad reasonable time to aligbt, tbe train moved forward, and by its motion in going forward struck bim and knocked bim down and ran over bis foot and' injured bim, be would be entitled to recover.”
Tbe latter part of tbis instruction is tbe subject of exception by tbe defendant, because it concludes witb tbe words, “would be entitled to recover,” and tbis exception finds support in wbat is said in Miller v. R. R., 143 N. C., 115, but tbis language does not stand alone, and must be considered witb reference .to tbe other parts of tbe charge, and when so considered ‘it will be found that bis Honor gave specific directions as to bow tbe issues should be answered by the jury, according to their findings on tbe different contentions of tbe parties.
It was not intended to be decided in tbe Miller case, nor do we think it has been so decided in any other, that counsel may not ask tbe judge presiding to instruct tbe jury upon general principles applicable and necessary to an understanding of tbe case, nor that tbe judge cannot do so of bis own motion.
Tbe defendant also excepts because, as it contends, bis Honor refused to instruct tbe jury to answer tbe first issue “No,” if they found tbe plaintiff was injured while attempting to jump from a moving train.
As was said in Cox v. R. R., 149 N. C., 87: “Tbe verdict, like tbe charge, must be construed witb reference to tbe trial.”
His Hon'or instructed tbe jury that they could not answer tbe first issue “Yes” unless they found that tbe plaintiff was injured while getting off tbe train after it stopped, and then presented tbe defendant's contention that tbe train was in motion at tbe time of tbe injury. He said: “If you find from tbe evidence that tbe train was being properly conducted and in motion, and shall further find that while it was in motion tbe plaintiff placed himself on tbe steps of tbe platform, and while tbe train was in motion the plaintiff, from bis position in which be bad placed himself, either fell from bis position or attempted to aligbt from tbe train while it was in motion, and fell or was knocked down by tbe cars, the defendant would not be guilty of negligence, and [533]*533it would be your duty to answer tbe first issue No.’ One wbo rides on a mixed train — that is, a train made up partly of freight cars with coaches attached — must take notice of the mode of moving such trains, and give a due regard thereto; and if you shall find from the evidence that the engineer slowed down his train and did not stop his engine, and thereby stop the movement of the passenger coaches, but moved slowly, and when he stopped his engine the passenger coach on which the plaintiff moved stopped at the time he stopped his engine, and after-wards and while plaintiff was attempting to alight, the passenger coach moved forward on account of the freight cars in front and between the passenger coach and the engine, taking up slack, it would not be negligence of the defendant, and you would answer the first issue No.’ Contributory negligence is where the negligence is a contributing cause-to the negligence already in motion, or put in motion during the'existence of the contributing act of' negligence; and if by the joint negligence of the two the injury is caused, each in part being the cause of the injury — to illustrate: if the defendant was negligent and the defendant’s negligence was the proximate cause of the injury to the plaintiff, and the plaintiff was negligent and his negligence contributed to the injury, it would be a case of negligence on the part of the defendant and contributory negligence on the part of the plaintiff. If you shall find from the evidence, by its greater weight, that the plaintiff attempted to' alight from a moving train, it would be a case of negligence on his part, because it was the duty of the defendant to stop its train at'the station, and a reasonably prudent man, careful of himself to avoid injury, would observe that the motion of the train, stepping from that to the ground, which was stationary, was calculated to throw him — cause him to fall and get hurt; and should you so find from the evidence, it would be your duty to say that he was contributing to the act of the defendant, if you find the defendant was negligent.”
We do not think the jury could fail to understand from this charge that the issues should be answered against the plaintiff if he was injured in attempting to jump from the train or while it was in motion. Indeed, his Honor, we think iuadverteutly, [534]*534went too far in behalf of the defendant, when he substantially told the jury to answer the second issue “Tes” if they found the plaintiff was careless.
The defendant further excepted to the following charge: “I charge you that if you shall find from the evidence, by its greater weight, that the train was slowed down on approaching the depot at Eranklinton, at the usual place of slowing down the train, and shall further find from the evidence that the train came to a stop before the plaintiff attempted to alight from the train, and that just as the plaintiff was in the act of alighting and before he had a reasonable time to alight, and before the passengers who were to alight at the station had a reasonable time to alight, the defendant’s engineer suddenly, without notice, moved the train forward, which motion of the train caused the plaintiff to fall, or struck him and knocked him down, and the train ran over his foot and injured him, it is your duty to answer the first issue ‘Yes,’ although the plaintiff was getting off on the opposite sidé of the train from the station, and on the side that passengers were not accustomed to alight.”
This instruction presents the question of proximate cause, and is equivalent to charging the jury that although the plaintiff was negligent in getting off on the wrong side of the train, and in the manner adopted by him, that if the train had stopped at the usual place, and he was attempting -to alight and was injured by a sudden movement of the train, a reasonable time not being given to leave the train, that the sudden movement of the train was the proximate cause of the injury, which is in accordance with authority. Darden v. R. R., 144 N. C., 3; Smith v. R. R., 147 N. C., 451.
The following excerpt from Moore on Carriers, sec. 38, is quoted and approved in Smith v. R. R., supra: “The duty resting upon a carrier involves the obligation to deliver its passenger safely at his desired destination, and that involves the duty of observing whether he has actually alighted before the ear is started again. If the conductor fails to attend to this duty and does not give the passenger time enough' to get off before the car starts, it is necessarily this neglect of duty which is the primary and proximate cause of the accident, if injury be [535]*535occasioned thereby to the passenger. It is not a duty due a person solely because he is in danger of being hurt, but it is a duty owed to a person whom the carrier had undertaken to deliver and who was entitled to be delivered safely by being-allowed to alight without danger.”
We have discussed the principal questions raised by the exceptions, and those mainly relied on on the oral argument and in the briefs, and have also considered the other exceptions not referred to, and upon the whole record find no error which entitles the defendant to a reversal of the judgment.
There are thirteen exceptions to evidence, which are not discussed in the brief, because counsel were doubtless of opinion, as we are, that they were without merit.
No error.