Fortune v. Southern Railway Co.

Brown, J. Tbe evidence in this case tends to prove that tbe plaintiff accompanied her - husband to defendant’s station at Waynesville for tbe purpose of seeing him off as a passenger for Asheville. For tbe purpose of accommodating the increased travel in summer, defendant bad daily an extra coach left at a *697 certain place on tlie side track close to tbe station at Waynes-ville, wbicb was attached to tbe train wben it arrived at Waynes-ville from'tbe west. It was customary to open tbis extra coacli some ten minutes before train time and to permit passengers to enter it. On tbe date of tbe injury tbe car was standing at tbe usual place on tbe side track, where passengers were accustomed to board it. The plaintiff and her husband stepped on tbe platform of this'car, with tbe view of entering it, about two minutes before train time, but finding tbe door locked, they were on tbe point of stepping off, wben tbe collision occurred wbicb caused tbe plaintiff’s injury. They were not on tbe platform exceeding two minutes. At tbis time there was a large concourse of persons at tbe station, waiting for tbe train. Under these conditions, and just as plaintiff and her husband were about to leave tbe platform, an engine was run into tbe side track, at a dangerous rate of speed, variously estimated by tbe witnesses at from fifteen to thirty miles an hour, and was caused to strike a car standing at tbe station platform and to drive it against tbe car upon wbicb plaintiff and her husband were standing, with such force that tbe ends of tbe two cars buckled and rose from tbe track, and tbe shock threw tbe plaintiff down and injured lier. Tbe learned counsel for defendant, in bis argument before tbis Court, rested bis defense very largely upon tbe defense of contributory negligence upon tbe part of tbe plaintiff in attempting to enter the car. We do not think there is any foundation for such defense upon tbe facts of tbe case. Tbe evidence discloses no negligent conduct upon tbe part of the plaintiff, while on tbe ear, wbicb in tbe least degree contributed to tbe injury she received. It will not be contended in tbis day and generation that it is negligence for a wife to escort her husband to tbe station and tc board a ear momentarily to bid him g-ood-bye. Tbe defense must properly rest upon tbe theory that tbe plaintiff was on tbe car without defendant’s consent, and that, being a trespasser, tbe defendant owed her no duty, except to refrain from willful injury, and therefore as to her is guilty of no negligent conduct. Tbis view of the evidence is properly 'presented under tbe first issue. *698 It is undoubtedly true that if plaintiff bad been a trespasser, stealing a ride, as in Bailey v. Railroad, 149 N. C., 169, or a huckster entering tbe train to sell bis wares, as in Reterson’s case, 143 N. C., 263, sbe could not recover. But .plaintiff was not in any sense a trespasser, and under tbe circumstances of this case ber presence on tbe car platform was neither wrongful nor negligent. Her presence there was not wrongful, because a wife who escorts a husband, or a husband a wife, to a seat on a railway train is not a mere trespasser to whom tbe company owes no duty except to abstain from willful injury. It is true, plaintiff was not a passenger towards whom tbe defendant was bound to exercise tbe highest degree of care, but sbe was on its premises by its implied invitation, and it was bound to exercise ordinary care for ber safety. Railway companies owe this duty at least to those whom, in practice, they allow to accompany passengers in order to see them off on trains without asking-special permission. Railroad v. Lawton, 55 Ark., 428; Packet Co. v. Wilson, 95 Tend.; 1 Hutchinson on Carriers, sec. 237; Whitley v. Railroad, 122 N. C., 987; Morrow v. Railroad; 134 N. C., 92; Moore v. Railroad, 119 Mich., 613. This implied invitation and consequent duty to those who, impelled by ties of relationship and affection, go to “welcome tbe coming, or speed tbe parting, guest,” is founded on recognized social observances which have become an universal and inseparable concomitant of modern railway traffic. Nor do we think tbe husband and wife were wholly unwarranted in attempting to enter the car at the time and under the circumstances in evidence. The car was an extra coach, brought up every morning from Asheville and left at Vayiresville for the afternoon train returning there. It usually remained at the station on the side track at the place the accident occurred. It was the defendant’s custom to open the car at that place ten minutes before train time, and passengers for Asheville at once boarded it and, upon arrival of the train, it was coupled on. In accordance with this custom, inaugurated and permitted by defendant, plaintiff and her husband boarded the car two minutes before train time in order that he might secure a seat. Finding it locked, they started back to the station, remaining *699 oil the car platform in all not more than two minutes, but were caught in the collision. There is no evidence that they lingered on the platform unduly long or did any act that a person of reasonable prudence would not be expected to do under the circumstances. We think his Honor’s first impressions of this case were the best: The cause is remanded, with direction to enter judgment for the damages ($350) assessed by the jury. Reversed.