Snipes v. Norfolk & Southern Railroad

Connor, J., after stating the case: There was testimony tending to show that on the day upon which the plaintiff was injured, he, together with two companions, were at Virginia Beach and desired to return to Norfolk over defendant’s road. They passed the depot and took seats in a car on the sidetrack, remaining there some twenty minutes. When the car came in from Norfolk going to Twenty-fourth Street Station, it stopped at Seventeenth Street Station to permit passengers to alight and get on, remaining there two or three minutes. While plaintiff was on the car on the side *20 track, tbe other car, with a trailer, ran up between him and the depot. One of his companions asked the motorman which car was going to Norfolk first, and was told “This one”; he passed in front of it, and when he was on the side, being an open summer car, with step extending entire length, and had gone two-thirds its distance, took hold of the upright with his right hand and put his foot on the step to board the car, when it suddenly started, throwing plaintiff off and jerking him around so that his arm caught under the car, etc. The defendant’s contention, that at the time of the injury plaintiff was not a passenger, and that, therefore, defendant owed him no duty, is presented by appropriate motions, followed by requests for instruction. It appears that defendant’s trolley is operated upon what is termed the Zone System, in the manner described by' the witnesses. The defendant’s testimony tended to show that the car which plaintiff attempted to board was not going in the direction of Norfolk, but to Twenty-fourth Street. It appears that persons desiring to go to Norfolk board the car at Seventeenth Street going to Twenty-fourth and returning by Seventeenth Street, their purpose being to avoid the crowd — securing seats at Twenty-fourth Street. It was in evidence that on the day of the accident several persons did so. The defendant’s counsel earnestly contend that as plaintiff intended going to Norfolk, the car which he attempted to board not heading in that direction, he was not, at the time of his injury, a passenger. The relative rights and duties of persons, who are either on or in the act of boarding a street car, and the employees of the company, have been so recently and clearly discussed and stated by this Court in Clark v. Traction Co., 138 N. C., 77, in which Mr. Justice Brown cites the authorities and draws the conclusions therefrom, that we do not deem it necessary to do more than refer to the opinion, and apply the law to the facts of this case. *21 His Honor instructed tbe jury: “Whenever a person goes to tbe usual stopping station of a street railway, intending in good faitb to take passage, and informs tbe inotorman or conductor, by either word or signal, that be wants passage, or if tbe ear is standing still, and be indicates by bis movements in very close proximity to tbe car, near enough to touch it, that he is trying to board tbe car, then be becomes entitled to all tbe rights of a passenger, even before be secures a seat, and tbe conductor should give him the rights of a passenger. It is tbe duty of a street car conductor to know when be starts bis car that no person attempting to embark is, at that moment, with one foot on the platform and tbe other on tbe ground and with bis .band on tbe railing, in tbe act of getting on board, or is otherwise in a position of danger. It is tbe duty of tbe conductor, before giving signal to start, to look around and see that all passengers to take passage at that place are safely on board, and failure to do so is not excused by the fact that be does not see an intending passen ger. Tbe passenger has tbe right to rely upon tbe care and protection of tbe company’s employees, and be is not bound to prepare for or even anticipate a sudden and unexpected start of tbe car.” To this instruction defendant excepts. We find no error in tbe instruction. Tbe measure of duty on tbe part of tbe defendant, laid down for tbe guidance of tbe jury, is in strict accordance with the best-considered authorities and with tbe reason of the thing. His Honor followed this instruction with a clear presentation of tbe defendant’s contention, to which there is no exception. Tbe “intending passenger” is not required to procure a ticket, nor is any provision usually made for bis doing so. It is immaterial to tbe conductor, unless asked, whether be is taking tbe car going to his proposed destination. Tbe stopping of tbe car at tbe usual and appointed place is an invitation to all persons desiring to do so, to board it, and when be indicates bis purpose, *22 ill any appropriate way, the invitation is thereby accepted, establishing the relation of passenger and carrier, with all of its reciprocal rights and duties. His Honor correctly interpreted and applied the law. The jury found the facts, and unless there was error in other respects, the appeal cannot be sustained. The record contains thirty-nine exceptions. Many of them are pointed to paragraphs of his Honor’s statement of the contentions of the parties, containing no proposition of law. The brief, while in the most general way, suggests that they are relied upon, makes no suggestion that there is any error in either statement or the form of expression used. It is not very clear to us why exceptions of this character are put in the record. They do not contain any “question of law or legal inference,” and are not, therefore, within the scope of our investigation. Eor failure to state a contention of the appellant, no exception will lie unless based upon a request to the Judge to state such contention. Eor an unfair, prejudicial statement of a contention, an exception, if properly made, will be sustained. We find no suggestion of such error in the record or the brief. While it is stated in the brief that defendant relies upon a large number of exceptions referred to by number only, no error is pointed out or suggested otherwise than by the statement that they are relied upon and assigned for error. We do not think that the record in this respect conforms to the rules of the Court. Rule 19 (2). In view of the rule that exceptions not relied upon in' the brief will be deemed waived, it is unfair to appellee for the Court to consider exceptions grouped in large numbers without suggestion as to the alleged error complained of. We have examined the entire record and find no error. His Honor’s, rulings in all respects conform to well-settled principles of law and procedure. There was much controversy in regard to the way in which plaintiff was injured, *23 every phase of which was submitted to the jury, with appropriate instructions. They have, as it was their province to ■ do, found the facts. The judgment must be Affirmed.