Hallow v. Atlantic Coast Line Railroad

Stacy, C. J. Tbe thesis of tbe demurrer is, that plaintiff was con-tributorily negligent in attempting to alight from a moving train, which bars recovery, and that this affirmatively appears from tbe complaint. Stamey v. R. R., 208 N. C., 668, 182 S. E., 130; Ballinger v. Thomas, 195 N. C., 517, 142 S. E., 761; Morrow v. R. R., 134 N. C., 92, 46 S. E., 12; Burgin v. R. R., 115 N. C., 673, 20 S. E., 473. We do not so understand tbe allegations of tbe complaint. It is alleged that when tbe plaintiff discovered be could not alight in safety be immediately decided to remain on tbe train. This is what be should have done according to tbe opinion in Morrow's case, supra. Tbe negligence of which tbe plaintiff complains became active and hurtful after be bad decided to return to tbe coach. His injury then resulted, not from an effort on bis part to alight from tbe train while in motion, but from tbe failure of tbe defendant to allow him reasonable time to depart and from tbe jerk which threw him through tbe open door. Riggs v. R. R., 188 N. C., 366, 124 S. E., 749. He was on tbe platform as a result of tbe permission and assurance which tbe porter and tbe conductor bad previously given him. He entered tbe train with their knowledge and consent. They knew tbe plaintiff expected to leave tbe train before it started and they bad advised him that be bad ample time to do so. At least, this is what be alleges, and for tbe purpose of tbe demurrer, it is to be taken as true. Speaking to a similar pleading in Ramsey v. Furniture Co., 209 N. C., 165, 183 S. E., 536, where tbe authorities are fully reviewed, Devin, J., writing for tbe Court, s.ays: “So that it must be held that only where on tbe face of tbe complaint itself tbe contributory negligence of tbe plaintiff is patent and unquestionable, so as to bar bis recovery, will tbe court allow advantage to be taken thereof by demurrer instead of by answer, as required by tbe statute.” *742 The plaintiff is entitled to a liberal interpretation of his complaint. C. S., 535. So construed, it appears to be good as against a demurrer. Affirmed.