Watkins v. Raleigh & Augusta Air Line Railroad

Clark, J. : The appellee’s counter-case was not served in the five days required by the amendatory act of 1889, Ch. 161. The appellant could therefore insist on his motion that his statement should be taken as the true case on appeal (Cumming v. Hoffman, 113 N. C., 267) but for the fact that his counsel waived the objection by telegraphing that he would accept service on his return home, which he did. Though the appellant’s counsel excepted when he sent the case and counter-case to the Judge with request to settle the case on appeal on the ground that the acceptance was after the expiration of the five days, the telegram was an estoppel; for, but for the telegram, the appellee might have served the counter-case within the statutory time by leaving a copy at the residence or office of appellant or his counsel. Code, Sec 597(3); State v. Price, 110 N. C.,599. The case as settled by the Judge must be taken as the case on appeal. *967 Tlie entire charge of the Judge is not presumed to be sent up, but only that part having reference to the exceptions taken. State v. Cox, 110 N. C., 503. The instruction excepted to is fully sustained by the cases of Lambeth v. Railroad, 66 N. C., 494, and Nance v. Railroad, 94 N. C., 619. Indeed this is a stronger case against the defendant, as there was evidence that the train was moving very slowly and the plaintiff got off the train by direction of the conductor and with care. As the prayer for instruction, which was declined, was'“that if the jury believed the evidence the plaintiff could not recover,” this evidence, for the purposes of the exception, must betaken as true. Passengers alighting from trains at the direction of the conductor “are justified in assuming the place to be safe, and only under exceptional circumstances will their alighting be contributory negligence.” Bishop Non-Contract Law, Sec. 1101. In Lambeth’s ease, sujpra, the passenger alighted on the platform and was killed. Here, fortunately, he got off on sandy soil and only his leg was broken. The case of Burgin v. Railroad, 115 N. C., 673, holds that the passenger is not justified in' leaping from the train while in motion, unless invited to do so by the carrier’s agent, and when it is not obviously dangerous, and approves Lambeth’s case. In the present case, there was no appearance of danger, either in the locality itself or in the rate of speed at which the train was moving, which made it contributory negligence to obey the conductor’s injunction to “step right off here, old man.” No Error.