Fulghum v. Atlantic Coast Line Railroad

Bkowjst, J. Tbe defendant offered no evidence, and tbe following is an accurate statement of tbat offered by plaintiff: Plaintiff was a passenger on defendant’s train on tbe morning of 29 January, 1909, and left tbe train at Bagley, N. C., a flag station at wbicb there was no regular depot, station-house, or platform. Passengers alighted generally in tbe vicinity of tbe public crossing. Tbe conductor helped tbe plaintiff off tbe car, and placed her safely on tbe ground about sixty feet north of tbe crossing, on tbe right side of tbe track going north, from wbicb point she started towards tbe crossing. There were several cross-ties distributed along tbe right of way for use in repairing tbe road between tbe point where she alighted and tbe crossing. Tbe plaintiff stepped on one of tbe cross-ties, her foot slipped on tbe tie, and threw her ankle out of joint. Plaintiff testifies she knew tbat tbe tie she stepped upon was “wet, muddy,, and slippery, and one end in tbe ditch and tbe other end towards tbe railroad, and tbe end towards tbe railroad was higher.” Plaintiff says she stepped on tbe tie because she thought it safer to step on it 'than over it. Plaintiff admits she could easily have stepped over it, and further admits tbat she could have walked around tbis cross-tie without stepping on or over it. The other testimony is tbat of two witnesses introduced by tbe plaintiff, wbicb tends to prove tbat tbe nearest end of tbe [557] cross-tie was five or six feet from tbe ear, and that there was ample room for the plaintiff to pass around it. The defendant offered no evidence, and moved to nonsuit, which motion was granted. ■ Upon a review of these undisputed facts, we conclude that his Honor properly sustained the motion to nonsuit: first, because there is no evidence of negligence; second, because the plaintiff’s own negligence was the immediate cause of her injury. 1. Bagley is a fiag station, having no depot nor station platform of any kind. Passengers are taken on the train in the vicinity of the crossing. The defendant for purposes of repairing its track had placed a few cross-ties at intervals along its right of way; the exact number does not appear; plaintiff says several, while one of her witnesses says there was only one tie between where she alighted and the crossing. All the evidence shows there was a space or passway five or six feet wide between the end of the ties nearest the railroad track and the cars. There is nothing in the evidence to indicate that plaintiff could not have walked around the ties with perfect safety. This occurrence did not happen in a town or city where a regular station is kept, but at a flag station where there was no depot or -platform required by law. We recognize fully the duty of a common carrier to provide safe means of access to and from its stations for the use of passengers (1 Hutchison on Carriers, sec. 51), but what may be considered a reasonably safe exit under conditions existing at Bagley would not be so regarded in populous towns and cities. ' We are not prepared to hold that it was negligence upon the part of the defendant to lay a few cross-ties under such conditions at intervals along its right of way for the purpose of repairing its track, where they were in plain view of the passengers in broad daylight, and not in the least dangerous to a person exercising ordinary care. 2. It is well settled in this State that where the plaintiff’s own evidence discloses such contributory negligence as bars recovery, a motion to nonsuit should be sustained. We think that is the case here. [558] Tbe plaintiff was assisted from tbe car by tbe conductor and landed in a place of safety only sixty feet from tbe public crossing. It was broad light. Sbe started towards tbe crossing. Sbe admits tbat sbe saw tbe cross-tie before ber. It was in an inclined position, one end elevated some and tbe other in a ditch. Sbe admits tbat sbe saw tbat it was muddy and slippery on top. Sbe further states tbat sbe could have easily walked around it, or have stepped over it. In fact, a ten-year-old child could have stepj>ed over it. Instead of taking tbe obviously safe course tbat tbe most ordinary prudence would have dictated, and either stepping over or walking around it, tbe plaintiff, with full knowledge of its condition, stepped upon tbe inclined tie, muddy and slippery as sbe knew it to be, and sprained or dislocated ber ankle. As much as we may sympathize with tbe plaintiff in her misfortune, a bare statement of tbe facts is, in our opinion, sufficient to demonstrate tbat it was caused by her thoughtlessness. Suppose sbe bad been on a station platform, and bad discovered a bole in front of ber in time to avoid it, and bad stepped in it instead of walking around it; or suppose sbe bad seen a grease splotch ahead of ber on tbe platform, and bad deliberately walked through it, instead of stepping across or walking around it, could sbe have recovered damages for consequent injury? It will scarcely be contended tbat sbe could. This is not a case like Hinshaw's, 118 N. C., 1052 (cited by plaintiff), where a passenger is placed suddenly in a position of danger by tbe carrier’s negligence and required to decide at once what course to pursue. He is not expected to exercise infallible judgment, but only ordinary care, and if be does so, be is not held to tbe consequences of bis act if be makes a mistake. But tbe plaintiff was not confronted with a sudden danger. Sbe was in a place of absolute safety. Tbe whole situation was open before ber. Sbe saw tbe tie, tbat it was slanting, muddy, and slippery. Sbe admits sbe could have stepped over it, or walked around it. She did neither, but deliberately stepped on it. Sbe must bear the unfortunate consequences of ber carelessness. [559] Tbe case is very much, like tbat of John v. R. R., 133 Ga., 525, where a woman with full knowledge that a strip of pavement along the car track had been torn up, decided to step across the excavation, and in doing so stepped on a paving stone and slipped and fell.' The Court says:- “The conductor, who was inside the car, had nothing to do with this decision, or the effort to carry it out. When she attempted to step from the car across the opening in the pavement, she placed her foot on a paving stone, or dirt, which gave way, and she was hurt. She took the chance of being able to make the long step successfully, and she failed to do so in safety. Even if the defendant was not altogether faultless, nevertheless, she .cannot recover for the results of her own conduct, with full knowledge and in full view of the situation. Her injury was unfortunate, but she has no right to recover from the defendant. This case is not like those involving concealed danger, or dangerous places known to the com--pany and not to the passengers, or where a passenger was ordered, or forced to leave a car, or where there, was a defect in street or sidewalk, which may have been previously known to a passenger, but of the proximity or danger of which by reason of darkness, or other cause, at the time of the injury, he was not aware.” We do not deein it necessary or useful to discuss the cases cited in the brief of the learned counsel for plaintiff. None of them bear even a little resemblance to the case at bar, which is peculiar and unusual in the facts presented. The judgment of the Superior Court is Affirmed.