Taylor v. Richmond & Danville Railroad

MerrimoN, C. J.: When the plaintiff brings his action to. recover damages for injuries sustained by him, occasioned by the alleged negligence of the defendant, he cannot recover if *236 the defendant alleges and proves contributory negligence on the part of the plaintiff, which was the direct proximate cause of such injuries. To make such defence effective it must appear that the negligence of the plaintiff was concurrent with that of the defendant and directly contributed to the injuries complained of. The contributory negligence is direct, proximate, when the concurrent negligence of the parties respectively at once produce such injuries. Doggett v. Railroad, 78 N. C., 305; Gunter v. Wicker, 85 N. C., 310; Farmer v. Railroad, 88 N. C., 564; Troy v. Railroad, 99 N. C., 298. Now, accepting the evidence of the plaintiff and all the evidence produced on the trial favorable to him as true, and granting, for the present purpose, that the defendant was negligent, as alleged in the complaint, we are of opinion that he is not entitled to recover. He was himself negligent, and his negligence contributed directly and proximately to the injuries of which he complains. lie was an experienced railroad laborer, was familiar with the defendant’s road, had been a laborer on it for several months, had frequently passed over it, knew it was new and rough and had many short curves. At the time of the accident in question, he was on a material train which was running very rapidly; he was in the rear of the “shanty-car.” It was a closed car, having an opening (a large one) on each side of it, one of them was closed and the other was open. A person standing unsupported in front of that opening would be very subject to be thrown out by a sudden jerk or rocking motion of the car, while the train of which it was part was running rapidly over the rough and crooked road. This was obvious to any person of ordinary intelligence, and especially to one familiar with railroads and moving trains, as was the plaintiff. Nevertheless, the plaintiff left the rear of the car, where he was seated and protected, and walked towards the stove located in the center of the car and between it and the open *237 door on the side of the car, the space between being about two or three feet; he did not support himself by holding fast with his hands to anything, or otherwise he might safely have passed between the stove and the closed door; he did not do so, he was unnecessarily passing the plainly perilous place without any support or protection, when he might have avoided it, and as he raised his foot, moving towards a seat he intended to reach and occupy, “ the train made a swift curve and ‘switched’ him out of the door.” As a consequence he was stunned and his arm broken. It was gross negligence on his part thus to expose himself to imminent peril. He, thereby, clearly contributed directly to the injuries he sustained, and must suffer the misfortune he so helped to bring upon himself. This is a much stronger case against the plaintiff than that of Smith v. Railroad, 99 N. C., 241, in which the plaintiff was held to have contributed to his injury. The appellant’s counsel insisted on the argument that the plaintiff was not chargeable with contributory negligence, because he was frightened and moved by fear of impending danger to‘go to the open door so, that in case of emergency, he might jump off the car. It is not necessary to determine or inquire here to what extent sudden fright or well grounded fear, occasioned by the negligence of the defendant, might, in possible cases, relieve or excuse a party as to contributory negligence. In this case the plaintiff did not, through fear, jump or attempt to jump off the car; he did not intend to do so unless in case of emergency. He was only apprehensive of danger and intended to be where he could promptly get off the car, if need be. In so doing he was careless and grossly negligent. Instead of going the safer way, as he admitted he might, and would have done if he had been more circumspect, he attempted to pass, without support or protection, almost immediately in front of the open door, a place, under the circumstances, of much danger. The mere fact that a person is alarmed and seeks to place himself where *238 lie may the more readily relieve himself from danger, does not excuse him from reasonable care and prudence in his efforts to do so. It is unnecessary to consider and pass upon the several assignments of error, because, as we have’said before, granting that the defendant was negligent, as alleged in the complaint, and accepting all the evidence favorable to the plaintiff as true, the latter could not recover, inasmuch as he contributed directly by his own negligence to the injuries he sustained. This Court sees that, according to the plaintiff’s own showing, he is not entitled to judgment; that the Court properly entered judgment for the defendant. The plaintiff cannot, therefore, be heard to complain that the Court possibly erred in some respect in the course of reaching a proper conclusion, and entering judgment accordingly. Judgment affirmed.