MONTGOMERY, J., dissenting. The plaintiff, with other laborers working on the defendant's road west of Morganton, was daily hauled to his work and returned home on the work or gravel train. This train stopped at Morganton daily in the evening in order that the plaintiff and other laborers living at that place might get off.
There was evidence tending to show the following to be the facts on this occasion: The train was returning from work and was running backward, the caboose in front, then four flat-cars, on which the laborers sat on the floor, there being no seats nor railing; then the tender and engine. The caboose was locked, *Page 263 so the laborers could not enter it.
The train slowed up for Morganton, whereupon the plaintiff got up and went to the platform of the rear end of the caboose, it not being safe to stand up on the flat-car, and stood on the top step to be ready to get off when the train stopped. There were no steps to the flat-car by which he could get off.
The engineer, instead of stopping as usual at that point, in response to a signal from the conductor, suddenly put on steam, which caused a sudden and violent jerk which threw the plaintiff on the track, broke his skull, and otherwise injured him. This sudden increase of speed and violent jerk, when the slowing train was naturally expected to be about to come to a full stop to let the laborers living in Morganton get off, was negligence on the part of the defendant.
The plaintiff could not safely have stood up on the flat-car, and in stepping upon the rear platform of the caboose car, to be ready to get off more readily and promptly, the plaintiff was not guilty of contributory negligence, unless it was shown that this was a more unsafe place. Whether it was more unsafe (351) was a question for the jury. This is not the case of one sitting in a passenger coach getting up and going out to stand upon the platform. Here the plaintiff could not get into the caboose.
He could not stand up on the flat-car. Whether in going upon the platform of the caboose he took a greater risk and thus incurred contributory negligence, and whether, if he did, the subsequent negligence of the defendant in unexpectedly increasing speed (instead of stopping as usual), and the sudden and violent jerk which threw the plaintiff off the train, injuring him, were not the proximate cause of the injury — were eminently questions of fact which only a jury could determine.
It was, therefore, error to nonsuit the plaintiff, for by so doing the judge passed upon the issues of fact which should determine this cause: (1) Whether or not the plaintiff was guilty of contributory negligence; (2) if that was true, was such contributory negligence, or the subsequent negligence of the defendant by increasing speed and causing the plaintiff to be thrown off, the proximate cause of the injury.
If the plaintiff could have escaped unhurt but for the jerk, the negligence of the conductor in signaling at that point for an increase of speed, instead of stopping as usual for the plaintiff and others to get off, as from custom they had a right to expect, and the negligence of the engineer in suddenly turning on steam, thus causing a violent and unexpected jerk, was the proximate cause. Upon a nonsuit, the evidence must be taken in the most favorable light for the plaintiff.
The cause should have been submitted to the jury with appropriate instructions upon the different phases of the evidence. The plaintiff is entitled to have a jury pass upon his allegations and proofs, as guaranteed by the Constitution. Error. *Page 264
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