Roberts v. Atlantic Coast Line Railroad

Hoke, J., after stating tbe case. Railroad companies, in tbe performance of tbeir duty as common carriers, are beld to a bigb degree of care in providing at tbeir regular stations places and conditions by wbicb passengers may board and aliglit from their trains in safety and in keeping such places free from unnecessary obstructions which threaten them harm. This obligation has been illustrated and applied in several recent decisions of the Court, as in Smith v. R. R., 147 N. C., p. 450; Mangum v. R. R., 145 N. C., p. 152, 153; Pineus v. R. R., 140 N. C., p. 450. And the decisions in other jurisdictions and text-writers of authority are in approval of the principle. Ayers v. R. R., 158 N. Y., p. 254; Reese v. R. R., 93 Ill., p. 662; Hutchinson on Carriers (3d Ed.), secs. 928, 935. In Smith v. R. R., supra, the Court quotes with- approval from Hutchinson on Carriers, sec. 128, as follows: “It is the duty of railway companies as carriers of passengers to provide platforms, waiting-rooms and other reasonable accommodations for such passengers at the stations upon such roads at which they are in the habit of taking on and putting off passengers. Their public profession as such carriers is an invitation to the public to enter and alight from their cars at their stations, and it has been held that they must not only provide safe platforms and approaches thereto, but that they are bound to make safe for ¿11 persons who may come to such stations in order to become their .passengers or who may be put off there by them all portions of their station grounds reasonably near to such platforms and to which such persons may be likely to go; and for not having provided such stational accommodations and safeguards railway companies have frequently been held liable for injuries to such persons.” And in Mangum’s case, supra, Associate Justice Brown, in delivering the opinion, said: “It seems now to be almost elementary that — 85 — one of tbe recognized duties of a railway company that undertakes to carry passengers is to keep its station premises in a reasonably safe condition, so tbat those who patronize it may pass safely to and from the cars. Pineus v. R. R., 140 N. C., p. 450; Wood on Railways, 310, 1341, 1349. This duty extends not only to the condition of the platform itself, whereon passengers walk to and from the trains, but also to the manner in which that platform is allowed by the common carrier to be used. Western v. R. R., 73 N. Y., 595; Wood, supra. The defendant owed a duty to plaintiff, and to all other passengers, to keep its depot platforms used by them as means of ingress and egress free from obstructions and dangerous instrumentalities, especially at a time when its passengers are hurrying to and from its cars,” citing Pineus v. R. R., and R. R. v. Johnston, 36 Kansas, p. 769. Applying the principle we are of opinion that the cause has been correctly decided and no reversible error appears in the record. While not prepared to say that the placing of the trunk in the position shown would under all circumstances constitute negligence, on the testimony presented it is certainly a relevant fact to be considered with other facts and circumstances in determining the question of defendant’s responsibility, and this was all the significance given it on the trial below, and in this there was no error certainly of which defendant could complain. Allowing then to this fact only the weight as suggested, the question of defendant’s liability was submitted to the jury in three aspects: 1. Whether there was negligence in wrongfully starting the train immediately on the call “All aboard” by the conductor? 2. Did the porter negligently hinder the plaintiff in his effort to board the train? 3. Was there a negligent failure on the part of the defendant’s employees to stop the train after plaintiff was discovered by them to be in a position threatening danger? All of them fairly arising on the testimony and all of them in our opinion given to the jury under correct and intelligent charge. His Honor charged the jury generally: “It is the duty of a railroad company to exercise reasonable care for the safety of persons attempting to board its trains at one of its stations — 86 — to become passengers thereon, and if there shall be a failure of such duty on the part of the railroad company, and in consequence thereof a person is injured, that would be negligence, and if such negligence is the proximate cause of the injury that would be actionable negligence ” and on the first position, among other things said, “When the conductor calls ‘All aboard,’ this is an express invitation to those who have not yet boarded the train to do so, and if the said train moves off after said announcement without giving opportunity to passengers who had placed themselves so near the train that there was a reasonable inference that they intended to become passengers thereon to avail themselves of this invitation, then the moving of said train is a negligent act.” And further that if the jury should find by the greater weight of the evidence that the conductor called “All aboard” and immediately started the train without giving plaintiff time, by the exercise of reasonable care, to enter the train, and shall further find that such act was the proximate cause of plaintiff’s injury, they would answer the first issue, Yes. The plaintiff in this instance having purchased his ticket was standing in the station yard, seemingly on the platform, in full view and very near, awaiting the arrival of his train and was clearly a passenger. Clark v. Traction Co., 138 N. C., p. 77; Tillett v. R. R., 115 N. C., p. 665; Seawell v. R. R., 132 N. C., p. 859. The conductor himself testified that the call “All aboard” is intended to give notice to those who are not on the train to get on, and that such was the general meaning of the term, and well considered authority is in favor of the definition as given by the witness. Lent v. R. R., 120 N. Y., p. 467; Carr v. R. R., 98 Cal., p. 366. See a full and informing note to that case in 21 L. R. A. (N. S.), p. 356. On authority therefore, as well as on the “reason of the thing,” there was testimony from which a breach of duty here could be inferred and justified the court in submitting this view to the jury. And on the first and second position the court further charged the jury in part as follows: “If the jury shall find by the greater weight of the evidence that the conductor shouted ‘AH aboard,’ and contemporaneously gave a signal for the train — 87 — to move forward, and the train did immediately move forward, tben this was notice on the part of the defendant that it was safe for a passenger who had placed himself near the train, as stated above, to enter said train, and if the jury shall further find that the plaintiff having placed himself near the train accepted said invitation, relying upon it, and was injured by reason of the closeness of the trunk to the railroad, then the defendant was guilty of negligence, and if the jury shall find by the greater weight of the evidence that such negligence was the proximate cause of the injury, they shall answer the first issue, Yes.” And further: “If the jury shall find that the porter obstructed the passage of the plaintiff in attempting to board the car, and the plaintiff was unable to board the car conveniently by reason of the closeness of the trunk to the train in conjunction with said obstruction, then the jury shall answer the first issue Yes, and the second issue No.” And further, as more 'especially bearing on the second issue, the court instructed the jury: “That although the plaintiff attempted to enter the train while it was moving off, and had succeeded, with his hands on the hand-rail, in placing one foot on the lowest step, but was prevented from going on up the steps before he reached the trunk from the fact that the porter on the train had preceded the plaintiff, had negligently stepped on the second step, and who saw, or by the exercise of reasonable care could have seen the condition of the plaintiff, and if the jury shall find such to be the facts by the greater weight of the evidence, then the negligence of the porter, which would be imputed to the defendant, would be the proximate cause of the injury, and the plaintiff’s negligence in entering the moving train would not be the proximate cause of the injury.” The charge here presents the conduct of the porter in the proper relation to the cause and in terms which give defendant no just ground of complaint. The case of Mary Sharer v. Paxson and others, receivers, 171 Pa. St., page 26, is an authority in support of this position. And on the third view presented the court charged: “If the jury shall find that the conductor saw the plaintiff attempting to board the car and shall further find that he saw the trunk — 88 — and could by tbe exercise of ordinary care have stopped tbe train in time to prevent tbe injury, tben tbe jury should answer tbe first issue Tes, and tbe-second issue No.” There was evidence that although tbe train moved off instantly it was going only four miles an hour at tbe time of tbe injury and with tbe powerful appliances now at command, could have been readily stopped, and on this feature of tbe case tbe conductor himself testified: “I tben saw plaintiff. He was at tbe southeast corner of tbe station platform talking with some one who was sitting on a buggy. Plaintiff attempted to catch rear end of same car. He was walking backwards with both bands raised as if to catch bold of tbe rails to tbe platform (which was tbe right way for him to walk if be was going to catch on to a moving train). It was after be bad caught tbe band-rail that be came in contact with tbe trunk. I hollered to him. I think I said Hook-out.’ I saw be was going to strike tbe trunk, but I don’t think be beard me.” And tbe Pullman conductor testified: “When conductor called ‘All aboard’ and tbe train began moving off be jumped from tbe, buggy and ran and caught tbe train at rear end of tbe car for colored people. There were some trunks on track. I saw bis danger and hollered to him to look-out. I caught tbe front end of the second car, one next tbe above car, just about tbe time be caught grab-irons on next platform to me. He struck tbe trunk standing there.” Under authoritative decisions here and elsewhere, this testimony was, we think, amply sufficient to justify and require that tbe case be submitted on tbe doctrine of tbe “last'clear chance.” Tbe negligent failure on tbe part of a person charged to avail himself of tbe last clear chance to avoid tbe injury as explained and illustrated in Edge v. R. R., 153 N. C., p. 212; R. R. v. Stewart, 91 Ala., p. 421; Straus v. R. R., 86 Mo., p. 422, and other cases. In what has been said, many of tbe positions urged upon our attention by tbe, diligent and learned counsel for the defendant have been already adverted to. It was, however, in addition, earnestly contended that tbe court committed error in refusing to give tbe following prayers for instructions as made: “If the jury shall find from tbe evidence that tbe defendant’s train remained at tbe station at Warsaw, on tbe occasion — 89 — on which the plaintiff • alleges that he was injured, a sufficient time for plaintiff and all others who desired to do so to have boarded said train, and to have entered into a car with safety, and while the train was not moving, then the defendant was not guilty of negligence, and the jury should answer the first issue, No.” And “If the jury shall find from the evidence that the defendant’s train remained at Warsaw, on the occasion on which the plaintiff alleges that he was injured, a sufficient length of time to enable the plaintiff and all other passengers desiring to do so to board said train and enter into a car while it was standing still and the plaintiff, instead of boarding said train and entering into a car while it was standing still, delayed to board said train until he knew the signal for departure had been given and the train was just about to start, and that his injury, if he was injured, was caused by such delay he would be guilty of contributory negligence, and they should answer the second issue, Yes,” but modified the same by adding thereto, in effect, “And if such delay on part of plaintiff in taking the train wras the proximate cause of the injury.” On the facts in evidence this modification was entirely proper. Nearly all the facts relied upon by plaintiff in support of his demand, the starting of the train too soon after the call “All aboard,” the act of the porter in hindering the plaintiff’s efforts to get aboard, and the failure to stop the train after the danger to plaintiff was or should have been observed by defendant’s employees, arose and were chiefly relevant after the train had started on its way. And the court could not therefore have made the conduct of plaintiff, in not taking the train until it had started, determinative and controlling, and as in matter of law the proximate cause of the injury. Again it was insisted that recovery should be barred because plaintiff was injured in the endeavor to get aboard a moving train. The general rule is that a passenger or outsider who is injured in the voluntary effort to board a moving train is guilty of contributory negligence, but numerous decisions here and elsewhere recognize exceptions to the rule, and this is especially true when the effort is induced by the direction or advice of the employees of the company, and when the movement of the train does not make — 90 — it obviously dangerous, giving due and proper regard to tbe conditions suggested. Owens v. R. R., 152 N. C., p. 439; Johnston v. R. R., 130 N. C., p. 488; Nance v. R. R., 94 N. C., p. 622; Straus v. R. R, 86 Mo., supra; R. R. v. Stewart, 91 Ala., supra; R. R. v. West, 66 Miss., p. 310; Lent v. R. R., 120 N. Y., supra. The evidence in the case showed that the train having moved off quickly had only reached a speed of four miles an hour when the injury occurred. The call of the conductor “All aboard,” as we have seen, was properly construed by his Honor as an invitation to all passengers, who had placed themselves so near as to afford reasonable indication that they intended to become passengers, to “get aboard,” and this, with the other testimony and circumstances elsewhere stated, presents a case requiring the question of contributory negligence to be submitted to the jury and the authorities cited are in approval of his Honor’s action in doing so. Apart from this and as a further fact the injury was not caused by any of the ordinary dangers incident to the attempt to board a moving train. The conductor himself said, “If the trunk had not been there he would have made it all right,” and in that view the effort of plaintiff was not necessarily and of itself the proximate cause of the injury. On consideration of the entire evidence the facts are very similar to those in Talbert v. R. R., 72 S. C., p. 132, a decision which fully supports the recovery had in the present case. There is no error and the judgment' for plaintiff is affirmed. No error.