Shaw v. Railroad

CLARK, C. J., and HOKE, J., dissenting. This was a civil action for the recovery of damages for injuries sustained by plaintiff as the result of an alleged fall from the front platform of one of the defendant's passenger cars while a passenger thereon on the night of 26 February, 1905, at a point about three-quarters of a mile west of Matthews, N.C. which fall, it is claimed, was caused by the sudden and violent jerking of the train. The Court submitted the usual issues of negligence, contributory negligence and damage. The jury found the issues for the plaintiff and assessed her damages. From the judgment rendered, defendant appealed. Plaintiff was a passenger on defendant's passenger train going to Matthews, N.C. In the car in which she was traveling was the following printed notice posted up at the time in a conspicuous place: "NOTICE! Passengers are prohibited from going on PLATFORMS or between CARS while the train is in motion, and are warned not to allow their HEADS or LIMBS to project from CAR WINDOWS." *Page 251 The evidence is conflicting, but there is much evidence tending to prove that plaintiff went out on the platform of the car and was injured thereon while the train was moving and before it had come to a stop. Section 2628, Revisal of 1905, reads as follows: "In case any passenger on any railroad shall be injured while on the platform of the car, or on any baggage, wood or freight car, in violation of the printed regulations of the company posted up at the time in a conspicuous place inside its passenger cars then in the train, said company shall not be liable for the injury: Provided, said company, at the time, furnishes room inside its passenger cars sufficient for the proper accommodation of its passengers." It is not contended that plaintiff went out on the platform for lack of room inside the car, because it appears from her own testimony that she had a seat; nor did she go out at the invitation of the defendant's agent. Her testimony is that the train was not in motion when she went on the platform. The following instruction was given by the Court, to which defendant duly excepted: "If the jury shall find that, when the plaintiff went upon the platform, she did so in the bona fide belief that the train was not in motion, but that it had come to a full stop, and that a reasonably prudent person under the same circumstances would have so believed and so acted, then you are instructed that section 2628 (314) of the Revisal of 1905 would not apply, although the train had not actually come to a full stop; and, in this view, if you shall find that the defendant was guilty of negligence, as alleged in the complaint, you will answer the first issue `Yes.'" The rule of the defendant company, which we have quoted, is given, when the terms of the statute have been complied with, the force and effect of a law of the State prohibiting passengers from going out on the platform of moving trains, and barring a recovery for injuries sustained under such circumstances. In other words, when the railroad company complies with the statute and the passenger voluntarily violates the rule posted for his protection, and he is consequently injured, the law refuses him a right of action. The passenger's conduct is not to be governed entirely by the doctrine of contributory negligence as expounded by the courts, but rather in the light that there is no actionable negligence — no cause of action. The statute is made for the protection of passengers as well as for that of the railroad company, and specifically relieves the company from any liability when the passenger violates its provisions. The vice in the quoted instruction is that it gives to the passenger the benefit of the rule of the prudent man as if the matter were being considered under the second issue and solely in the light of contributory *Page 252 negligence. The instruction reads into the statute something that is not there, and practically places upon the railroad company the responsibility for the passenger's error. However inadvertent such error, the passenger, and not the carrier, is to blame. His Honor assumes that the train was moving (how fast he did not state), and declares that the statute does not apply if the plaintiff entered upon the platform in thebona fide belief that the train was not moving, and if a reasonably prudent person under similar circumstances would have so believed (315) and so acted. This practically nullifies the force and effect of the statute and leaves it for the jury to determine when they will apply the statute and when not. It is a very simple and easy matter by observing outside objects or the earth itself to tell when a train is at a standstill, and it imposes no hardship upon a passenger to require him to be certain as to that before entering upon the platform. The carrier owes no duty to be upon the lookout for passengers who violate the printed rule and go on the platform when prohibited, and the engineer and those in charge of the train have a right to suppose that passengers will remain in the car until it comes to a full stop, and they have a right to act accordingly. The statute contains no exception to its general provision, and in plain terms relieves the company from liability in the case of a passenger injured while on the platform of a moving train when the company, as in this case, has complied with its terms. In Denny v. R. R., 132 N.C. 340, it is held that a passenger who voluntarily goes upon the platform of a moving train for the purpose of alighting at the station, and is injured by reason of a jerk in the train, is not entitled to recover therefor, and Mr. Justice Connor, speaking of the duty of the engineer, says: "He cannot be supposed to know or anticipate, that passengers, in defiance of the rules, have gone upon the platform and are standing upon the steps of the car while in motion." See, also R. R. v. Hawk, 72 Ala. 112. In the case before us as in Denny's case, there is no suggestion that the conductor was upon the platform and no evidence that plaintiff was invited to go out there preparatory to leaving the train. The fact that the porter called out the station name before, reaching the station was no invitation to go upon the platform, for at that time the train was running rapidly, and only after the announcement (316) did it begin to slow down. In Smith v. R. R., 88 Ala., it is said: "The mere announcement of the name of a station is not an invitation to alight; but, when followed by a full stoppage of the train soon thereafter, is ordinarily notification that it has arrived at the usual place of landing passengers. * * * Comparing all the cases, we deduce that, when the name of the station is called, and, soon thereafter, *Page 253 the train is brought to a standstill, a passenger may reasonably conclude that it has stopped at the station, and endeavor to get off, unless the circumstances and indications are such as to render manifest that the train has not reached the proper and usual landing-place." To the same effect are the following cases: England v. R. R., 21 N.E. 1; R. R. v. Holmes,97 Ala. 332; Mitchell v. R. R., 51 Mich. 236; R. R. v. Green, 25 Am. St., 255; Minock v. R. R., 56 N.W. 870. It is contended by defendant that there is a material variation between the allegation of the complaint and plaintiff's proof, in that she alleges in her complaint that the train was moving when she entered on the platform, and in her testimony she states that it was at a standstill. It is unnecessary that we consider this, as the complaint may be amended before another trial. New Trial.