Wallace v. Norfolk Southern Railroad

Allen, J., after stating the case: There is authority for the position presented by the defendant in the first prayer for instruction (S. v. Grand Trunk Ry. Co., 58 Me., 176; De Kay v. R. R., 41 Minn., 178); but the better rule, and one supported by the weight of authority, is that a passenger does not lose his rights as such by leaving the train temporarily at an intermediate station for a lawful purpose. 10 C. J., 624; 4 R. C. L., 1040; R. R. v. Satler, 64 Neb., 636; Dodge v. R. R., 148 Mass., 207; Parsons v. R. R., 113 N. Y., 355; R. R. v. Coggins, 32 C. C. A., 1, and other authorities in the note to the citation to Corpus Juris and Ruling Case Law. The author in Corpus Juris states the principle as follows: “The relation, ordinarily terminates when a passenger chooses to abandon his journey at a point before reaching the place to which he is entitled to ride. But a temporary departure from the train for any good or reasonable cause, without an intention to abandon transportation, does not terminate the relation. As a general rule, a passenger does not lose his character as such by merely temporarily alighting at an intermediate station, with the express or implied consent of the 'carrier, for any reasonable and usual purpose, such as the procuring of refreshment, the sending or receiving of telegrams, or for the purpose of exercising by walking up and down the platform, or even from motives of curiosity.” And the Court said, in the Nebraska case, “In this country of long journeys by railway trains there can be no impropriety in a passenger claming the right, which may be sai$ to be established 'by long custom, to leave his car at an intermediate point on his journey, where a stop of any considerable time is made, to send a message, to obtain exercise and relief by walking up and down the platform, or to gratify his curiosity, provided he does not interfere with the employees of the company or run counter to any established rule brought to his notice. In the exercise of this privilege he does not lose his character of passenger, and the com *175 mon-law duties of tbe carrier are still to be exercised in bis bebalf, and injuries received on account of a failure on tbe part of a carrier to ■observe all its duties toward bim required by tbe rules of tbe common law must be responded to in an action for damages.” In tbe Massachusetts case: “To determine tbe rights of tbe parties in every case, tbe ■question to be answered is, "What shall they be deemed to have contemplated by their contract % Tbe passenger, without losing bis rights while be is in those places to which tbe carrier’s care should extend, may do whatever is naturally and ordinarily incidental to bis passage. If there are telegraph offices at stations along tbe railroad, and tbe carrier furnishes in its cars blanks upon which to write telegraphic messages, and ■stops its train at stations long enough to enable passengers conveniently to send such messages, a purchaser of a ticket over the railroad has a right to suppose that his contract permits him to leave his car at a station for the purpose of sending a telegraphic message, and he has the rights of a passenger while alighting from the train for that purpose, ■and while getting upon it to resume his journey. So of one who leaves a train to obtain refreshments, where it is reasonable and proper for him so to do, and is consistent with the safe continuance of his journey in a usual way. Where one engages transportation for himself by a conveyance which stops from time to time along his route, it may well be implied, in the absence of anything to the contrary, that he has permission to alight for his own convenience at any regular stopping place for passengers, so long as he properly regards all the carrier’s rules and regulations, and provided that his doing so does not interfere with the ■carrier in the performance of his duties.” In the New York case: “We -do not think that a passenger on a railroad train loses his character as ■such by alighting from the cars at a regular station, from motives of ■either business or curiosity, although he has not yet arrived at the terminus of his journey.” And in the case from the Circuit Court of Appeals: “But we think the weight of authority, reason, and custom all require us to hold that where a passenger, without objection by the company or its agents, alights at an intermediate station, which is a station for the discharge and reception of passengers, for any reasonable and usual purpose, like that of refreshments, of the sending or receipt of telegrams, or of exercise by walking up and down the platforms, or the like, he does not cease to be a passenger, and is justified in the belief that the company is exercising due care for his safety.” These authorities, and the reasoning on which they are based, are satisfactory to us, and justify the refusal to give the first prayer for instruction. There are several objections to the second prayer. In the first place, Dr. Hunter knew nothing of the facts and did not testify to them, his *176 evidence being confined to a conversation with the plaintiff; but i£ we give a broader interpretation to the prayer, it is objectionable as singling out the evidence of one witness and directing the attention of the jury to that instead of to all the evidence bearing upon the issue. The answer to the second issue, taken in connection with the charge, also shows that the j ury accepted the theory of the plaintiff that the conversation with Dr. Hunter was while he was in such pain that he did not know what he was saying. Again, the statement made by Dr. Hunter is not necessarily inconsistent with the evidence of the plaintiff at the trial, that there was a violent movement of the train; and if the two could stand together, the evidence of Dr. Hunter was material on the second issue of contributory negligence, and not on the first issue, to which the prayer was directed. This is evidently the view taken by his Honor, as he charged the jury: “Now, if this evidence satisfies you, by its greater weight, that the plaintiff got off the train at Pinetown, holding a ticket for a point beyond Pinetown, got on the opposite side of the train from the station and waited until after the train had started to pull out, and that he then attempted to catch the train while it was in motion, then the plaintiff would be guilty of contributory negligence, and it would be your duty to answer the second issue ‘Yes.’ ” This was perhaps too favorable to the defendant, as-it is not contributory negligence in all cases to get on a train while in motion, but of this the defendant cannot complain, and this excerpt from the charge also shows that the third prayer was given. No error.