Wallace v. Western North Carolina Railroad

Davis, J., (after stating the case). The charge of his Honor is set out in full, but as we think there was error in instructing the jury that there was no evidence of contributory negligence, it is not necessary for us to consider how far the prayer for instructions, though not given in the form requested, was substantially met by the charge as given, or whether the charge did not cover the instructions asked for to the full extent to which the defendant was entitled; and we may say that the defendant was not entitled to the 6th, 7th and 8th instructions at all. In Smith v. N. C. R. R. Co., 64 N. C., 235, it is said: “ When the facts are agreed upon, or otherwise appear, what is ordinary care is a question for the Court. When the facts are in dispute, the proper course for the Judge is, to explain what would be ordinary care under certain hypotheses as to facts, and have the jury to apply .the law to the facts, as they find them.” The same rule applies to negligence and to contributory negligence. If there is any evidence, from which the jury may find facts constituting contributory negligence, it should go to the jury. Was there any negligence tending to show contributory negligence in this case? We think there was. A “caboose” attached to a freight train, does not furnish rail the appliances and conveniences for the safety and com- ; fort of passengers that are provided for passenger trains, and while it is the duty of the company carrying passengers on ; such a train to exercise every reasonable care, and take every precaution against injury or danger to the life of such passengers, which the appliances for that mode of transportation will admit of, it is also the duty of the passenger who -¿ravels on such a train with a full knowledge of the in *499 creased risk incidental thereto, to be correspondingly careful in guarding against injury, by reason of the risk incidental to such mode of travel. An act may be negligent or not, according to the attendant circumstances. An act on a regular passenger train, with air brakes and other appliances to secure smooth and comfortable, as well as safer travel, may not be at all negligent in the passenger, while the same act in a “caboose” attached to a freight train might be careless and negligent. It is a fact of common knowledge that even on a passenger train, with every appliance for comfort and safety that can be devised, there is more or less of jar and jerk incident to the starting and stopping of trains, and it is in evidence in this case that such jars and jerks are much greater on freight trains, and necessarily so, by reason of their character. The passenger on such a train assumes the ordinary risk and discomfort incident thereto, and if the train is managed with such care and prudence, by skilful and competent employees, as to subject him only to the discomfort and risk thus incident, the company would not be liable for any accident resulting therefrom, by reason of the failure of the passenger to show usual and ordinary precaution. There is evidence tending to show that the plaintiff did not do this. It is in evidence that the jerks and jars incident to the freight train were known to him; that on this occasion the train was a long one, and the locomotive was moving it with difficulty, and there had been frequent jerks, more or less severe, and such as seem to have suggested to other passengers the propriety of retaining their seats, for one of the plaintiff’s witnesses testified that “he kept his seat,” knowing “ that they were pretty rough about starting.” It was in evidence that there were seats for all the passengers, and the fact that others in the “ caboose ” kept their seats, and none of them were hurt, constitute some evidence tending to show that it was careless and negligent in the plaintiff, under the circumstances, to be standing. We think *500 there was error in withholding from the jury the second issue, and the defendant is entitled to a new trial. Error.