Thorp v. Durham Traction Co.

74 S.E. 644, 159 N.C. 33, 1912 N.C. LEXIS 221

Opinion

Hoke, J.

There was evidence on the part of plaintiff tending to show that on 5 January, 1911, between 6 and 1 o’clock in the evening, she was a passenger on the street car of defendant company, and in handing her transfer ticket to the conductor she informed him that she desired and intended to alight at Dillard Street, and he replied, “All right.” That as the 'ear approached this crossing the conductor called out “Dillard Street” as much as three times, and on the last call the car stopped at Dillard Street. That a white passenger named Eeid sitting, just behind witness got up and went toward the door of the car, and plaintiff and her young son, also a passenger, followed. That Eeid got off on the north side of the car and plaintiff was endeavoring to get off from the south side, and as she made a step in the effort- to alight, the car, without any warning, gave a sudden jerk, causing plaintiff to fall in tbe street and by wbicb -she was severely and painfully injured. Tbe attending physician testified tbat plaintiff was severely bruised and burt, was rendered unconscious and bad to be sent to tbe hospital for treatment.

There was testimony on' tbe part of defendant in contradiction of this evidence and tending to show that the car moved across Dillard Street at a slow and even pace; stopping at tbe usual place, and there was no sudden jerk of the car made and that plaintiff was hurt in the effort to get off the car when same was in motion.

Considering this testimony under the rules applicable in such cases, the plaintiff’s evidence, if accepted by tbe jury, made out prima, facie a cause of action against defendant company, and tbe motion for nonsuit was therefore properly overruled. Kearney v. R. R., 158 N. C., 521; Morarity v. Traction Co., 154 N. C., 586; Darden v. R. R., 144 N. C., 1; Clark v. Traction Co., 138 N. C., 77; and on the way that tbe testimony should be considered and dealt with on motions of this character, see, among other cases, Reid v. Rees’ Sons Co., 155 N. C., 230; Horne v. R. R., 153 N. C., 239; Deppe v. R. R., 152 N. C., 80.

- It was chiefly urged for error on the part of defendant tbat the court, after directing the jury in general terms that plaintiff could not recover if she was injured in endeavoring to alight from the car when in motion, qualified the proposition in a later portion of the charge as follows: “If you find from the evidence in this-case that defendant’s car at tbe time of tbe alleged injury slowed down for the stop at Dillard Street, and the conductor called out Dillard Street and was running very slowly, and was about to stop for passengers desiring to get off at tbat point to alight, and find the plaintiff was a passenger at said time, then it would not necessarily be negligent for her to get up from her seat, if she were sitting down, in order tbat she might be ready to alight, nor would it necessarily be negligence for her to move towards tbe platform of tbe car for the purpose of being ready to alight, or to attempt to alight, not necessarily.” And further: “If you find from the evidence in this case, and by its greater weight, that before the car came to a full stop at Dillard Street it slowed down in such a way as to cause a person of reasonable care and prudence to believe that it had really stopped, when it had not, for passengers to alight, and the conductor called out Dillard Street, and that the plaintiff, reasonably believing it was about to stop, attempted to move from the inside of the car to the platform, and in doing so acted as a person of reasonable care and prudence .would have done under similar circumstances, and that while acting so there was a sudden and unexpected movement of the car forward, and that such movement was the real cause of her injury, under these findings the defendant would be guilty of negligence, and you would answer the first issue ‘Yes,’ in considering that phase of the evidence, that is, as to whether the car was moving, if the plaintiff has not satisfied you by the greater weight of the evidence that she got off when it stopped. I have already said to you that ordinarily a passenger should not get off of a .moving car. There are some exceptions, and this last instruction is intended to embrace an exception, and it is for you to say whether the facts come under it or not.”

There were facts in evidence upon which ■ to base these excerpts, and in so far as they embody the proposition that it is not negligence per se for a passenger to arise from his seat and move towards the door with a view of getting off when the car is approaching the station where he intends to alight and after it has slowed down for the purpose, the charge is in full accord with the authorities, and the principle finds direct support in our own decisions. Suttle v. R. R., 150 N. C., 668; Tillett v. R. R., 118 N. C., 1031; Thompson on Negligence, sec. 3591. And the charge may well be sustained in directing the jury as it did, in effect, that although the car was in motion at the time, the plaintiff would not be barred of recovery if she went out on the platform after the conductor had called the street where she was to get off and the car had slowed down 'in such a way and to such an extent as to lead a person of reasonable care and prudence to believe that it was about to stop or that it actually had stopped, and plaintiff, acting as a reasonable and prudent person in so doing, was injured in her effort'to alight by tbe car being suddenly moved or jerked forward by defendant or its employees in charge. A passenger injured is not always and as a matter of law barred of recovery because injured in tbe attempt to board or aligbt from a moving car. As applied to tbe facts suggested and made tbe basis of bis Honor’s charge, tbe correct doctrine is very well stated in Thompson on Negligence as follows: “Where tbe car has been brought to a stop, or where it has been slowed so that its motion is very slight, and tbe passenger attempts to aligbt, and, while making tbe attempt, tbe car is suddenly started, so that tbe passenger is thrown down, negligence will not be imputed to tbe passenger as matter of law, but the- question of tbe negligence, both of tbe carrier and tbe passenger, will go to tbe jury; but this presupposes that tbe passenger has in some way given the trainmen notice of bis intention to aligbt. A passenger is not imputable with contributory negligence as a matter of law, from tbe mere fact that be commences the act of alighting from tbe car before tbe car has come to a full stop. But if, while be is in tbe act of alighting, tbe car is negligently started forward with a sudden jerk, whereby be is 'thrown down and injured, tbe cause of tbe injury will be imputed to the negligence of tbe carrier, and not to bis own negligence”; and tbe statement is approved by decision of tbe courts here and elsewhere. Darden v. R. R., 144 N. C., 1; Whisenhant v. R. R., 137 N. C., 349; Hodges v. R. R., 120 N. C., 555; Nance v. R. R., 94 N. C., 619; R. R. v. Harman, 147 U. S., 571. There is nothing in Sham v. R. R., 143 N. C., 312, or Denny v. R. R., 132 N. C., 340, or Brown v. R. R., 138 N. C., 34, or in tbe other authorities cited in conflict with this position on tbe facts as presented and embodied in this charge.

In Shaw's case recovery was denied because tbe passenger was on tbe platform of a moving railroad train contrary to tbe rules of tbe company made under express authority of a statute, and it was held that there was no evidence that tbe company or its agents bad done anything to abrogate or waive tbe operation and effect of tbe rule. See tbe interpretation of Shaw's case appearing in Borden's case’, supra.

In Benny's case tbe nonsuit of defendant’s cause was sustained, the court being of opinion that there was nothing in the circumstances to warn or notify defendant’s engineer that plaintiff was or would be oh the platform in violation of the company’s rules made and posted in pursuance of this same statute, and for that reason there were no facts upon which the negligence could be imputed.

But in both of these cases and in that of Browne v. R. R., 108 N. C., 34, while the general rule is approved that a passenger injured while attempting to alight from a moving train or car has no cause of action, it is also recognized that under exceptional conditions recovery is not necessarily denied.

We agree with his Honor, that on the facts as suggested the case may be properly considered as coming within the exceptions to the rule and that no reversible error to defendant’s prejudice is presented. After careful consideration of the entire record, we are of opinion that the cause has been correctly tried and that the judgment in plaintiff’s favor should be affirmed.

No error.