Carter v. Seaboard Air Line Railroad

Wálkeb, J., after stating the case: If the judge expressed any opinion as to how long the plaintiff remained on the train, it was in the part of his charge upon the first issue, and as the jury answered that issue in favor of the plaintiff, the error, if any, was thereby cured and became harmless. This is a well settled principle, and is undoubtedly a correct one. Vickers v. Leigh, 104 N. C., 248; Graves v. Trueblood, 96 N. C., 495; Thornburg v. Mastin, 93 N. C., 258; Clark’s Code (3 Ed.), p. 771, note to. section 550, and cases; 3 Womack’s Digest, pp. — 249 — 18 and 19, where the numerous cases are referred to. Where the jury corrects an error, if one has been committed by the trial court, it is disregarded, because unprejudicial and eliminated by the verdict. Error alone is not sufficient to reverse, but there must be some harm to the party who excepts, by reason thereof; not that he must affirmatively show injury, but if it appears that there is none, his exception fails. 3 Cyc. (title, Appeal and Error), p. 383 et seq. There was evidence by two witnesses, and taken from the record, that the train stopped four minutes, but whether plaintiff had fully this time to perform his act of gentle courtesy and leave the train before it resumed its journey, related to the first issue, as we have shown, and plaintiff won on that part of the case. He has not, therefore, been hurt. ' The real question is, Was he guilty of negligence himself when leaving the train? This is to be determined by his conduct at the time. If the train was running at the rate of 10 or 15 miles the hour, and increasing its speed, he was clearly negligent in jumping from it. Such an act was, on its face, a reckless one. But the court, as we think, correctly instructed the jury according to the accepted doctrine of the courts, and of this Court especially, which may be thus stated: Although the passenger, by the refusal of the railway company to stop its train, may be carried beyond his 'destination unless he alights while the train is in motion, he will not be justified in attempting to alight, notwithstanding an invitation to do so by an employee acting in the line of. his duty, if the speed of the train is so great that the danger of alighting is apparent, or if' circumstances exist making the attempt obviously perilous. In such cases, prudence would require him to.submit to the wrong and to seek his redress for it in an action against the carrier, if he should be blamable. A passenger would only be justified in siich attempt to avoid the inconvenience by leaving the vehicle while in motion when the circumstances were such as to induce a person of ordinary prudence and caution to believe that no danger was to be apprehended from such a course. 3 Hutchi-son on Carriers,' sec. 1180 and notes. This accords with our own decisions. — 250 — In Johnson v. R. R., 130 N. C., 488 (opinion by tbe present Chief Justice), this Court approved a charge not, in substance, unlike that of Judge Peebles in this case. It was held that if tbe carrier’s employee, acting witbin tbe line of bis duty, either by bis words or conduct induces another, who is lawfully on tbe train, to alight therefrom, tbe latter is justified in doing so, provided it would not appear to a man of ordinary prudence dangerous to make tbe attempt at tbe time, and provided further, be otherwise exercised due care in alighting. Said tbe Court: “If upon such.an invitation tbe plaintiff did alight, tbe speed’ of tbe train not being such as to put him on'guard” not to act on tbe assurance thus given by tbe employee, tbe contributory negligence of plaintiff was not so manifest as to become a matter of law, but was for tbe jury upon tbe 'facts, as they found them to be. This is tbe clear substance of tbe opinion, with some of tbe language of tbe Court. This was tbe view taken by Judge. Peebles in tbe case at bar, and be therefore left it to tbe jury to say, by their verdict, whether tbe invitation to alight, express or implied, was given by tbe porter, and if it was, whether alighting, at tbe time and under tbe circumstances, would have appeared to a man of ordinary prudence obviously dangerous, and if they found tbe danger was so apparent that an ordinarily prudent man would not have taken tbe risk, plaintiff was guilty of contributory negligence in doing so. So be submitted tbe question in two branches: first, was tbe invitation given, and, second, was tbe plaintiff negligent, notwithstanding tbe invitation, in taking an obviously dangerous chance of being injured ? Tbe jury found, either that no invitation was given, or, if it was, that tbe plaintiff bad himself been negligent, as tbe danger was obvious. Tbe Court held, in Browne v. R. R., 108 N. C., 34 (cited in Johnson’s case, supra), that tbe act of getting on or off a moving train is evidence of contributory negligence, and imposes on one who is injured in doing so tbe burden of proving that tbe peculiar circumstances of tbe case justified him in such course. A common carrier of passengers is under no obligation to delay tbe departure of its trains, or to look after tbe safety of — 251 — persons wbo attempt to enter them, when they have been stopped long enough to allow passengers to embark and disembark; but it may be liable for injuries suffered by one who, by the invitation or command of persons in charge of the trains, attempts to get on or off while the cars are in motion, provided he does not expose himself to manifest danger. Burgin v. R. R., 115 N. C., 673 (opinion by Shepherd, /.), was a case where plaintiff alleged merely that the conductor promised to stop for him to get off at Bound Knob, but failed to do so, and that being, at the time, on his way home and anxious to see his child, who was sick and in a dying condition, he jumped from the train as it was passing the station, and was injured; held, on demurrer, that the complaint was bad, the Court saying: “We think there can be no question as to the correctness of the ruling sustaining the demurrer. The general rule is that passengers who are injured while attempting to get on or off a moving train cannot recover for the injury. Browne v. R. R., 108 N. C., 34; Hutchison Carriers, sec. 641. In Lambeth v. R. R., 66 N. C., 494, it was said: 'If the intesta’te, without any direction from the conductor, voluntarily incurred danger by jumping off the train while in motion, the plaintiff is not entitled to recover.’ In addition to these authorities, there are a number to be found in other jurisdictions which abundantly sustain the proposition that it is contributory negligence to 'attempt to alight from a moving vehicle, although, in consequence of the refusal of the carrier to stop, the passenger will be taken beyond his destination, unless he is invited to alight by some employee of the carrier whose duty it is to see to the safe egress of the passengers from the conveyance. The mere fact that the train fails to stop, as was its duty, or as the conductor promised to do, does not justify a passenger in leaping off, unless invited to do so by the carrier’s agent, and the attempt was not obviously dangerous,’ ” citing Walker v. R. R., 41 La. Ann., 795; Jewell v. R. R., 54 Wis., 610; R. R. v. Morris, 31 Grattan (Va.), 200; Nelson v. R. R., 68 Mo., 593; 2 Wood on Railways, 1133, and adding that there are many other cases to the same effect. — 252 — There was some evidence in Lambeth v. R. R. (66 N. C., 495), .which, though, was disputed, that plaintiff alighted from a moving train by the invitation or command of the conductor, and the Court said with respect to this phase of the case; “If the intestate, without any direction from the conductor, voluntarily incurred danger by jumping'off the train while in motion, the plaintiff is not entitled to recover. If the motion of the train was so slow that the danger of jumping off would not be apparent to a reasonable person, and the intestate acted under the instructions of the manager of the train, then the resulting injury was not caused by contributory negligence or a want of ordinary care,” citing Sh. and Redf. on Negligence, chs. 15 and 21. These authorities have all been since approved by this Court as stating the true principle applicable to such cases. Morrow v. R. R., 134 N. C., 92; Denny v. R. R., 132 N. C., 340; Hinshaw v. R. R., 118 N. C., 1047; Hodges v. R. R., 120 N. C., Watkins v. R. R., 116 N. C., 962. We said in Morrow v. R. R., supra, that “All of our cases are based upon what was held by this Court in Lambeth v. R. R., 66 N. C., 494 (8 Am. Rep., 508), which has been conceded, for many years, to be the leading and controlling authority with us upon the question.” And in Watkins v. R. R., supra, Justice Ciarle said: “The case of Burgin v. R. R. (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. The reason for this being an exception to the general rule, that it is negligence for a person to alight from a moving train, is that the invitation of the conductor, porter, or other employee of the carrier, acting in the course of his duty, to alight, is equivalent to an assurance that it can safely be done at the time and place, and the person may reasonably act upon this' implied assurance, in the absence of any facts or circumstances which obviously show that it is dangerous, so that a man of ordinary prudence would not take the chance of injury thus facing him. It is not only a firmly settled rule, but is also an — 253 — eminently just and reasonable one, and it bas been adopted in a case of great weight (R. R. v. Egeland, 163 U. S., 93). The court, therefore, properly left the question to the jury, whether the invitation was given, and if so, whether the danger was so obvious that a man of ordinary prudence would not have acted upon the invitation and incurred the risk. The judge did not give the instruction in the language used by counsel in framing it, nor was he required to do so. No rule of practice is better settled than that a judge is not bound to give instructions in the identical words of a request, if the matter or principle embraced therein is correct and amply presented. Annuity Co. v. Forrest, 152 N. C., 621. It is sufficient to comply with the request in substance, with this cautionary limitation, that while the judge is not confined to the exact language of a prayer for instructions, as selected by counsel, and keeps within the law if he gives it substantially and so that the jury may fully understand its meaning, he cannot so alter the phraseology as thereby to weaken its force. Graves v. Jackson, 150 N. C., 383; Rencher v. Wynne, 86 N. C., 268. It may often be proper to change the language so as to enlarge or restrict the scope of the instruction, or to apply correct legal propositions, abstractly stated, to the concrete case presented by the evidence. We think the judge fully complied with this rule, although he departed from the very words of the instruction, as he had the right to do.. He explained to the jury the principle of law as applicable to .the different phases of the evidence, and did it with perfect accuracy. He told the jury that if the porter gave the invitation, and plaintiff was induced or caused thereby to get off at the place where the culvert was, they would answer the second issue “No,” unless they were satisfied, from all the evidence, that the train was moving at a speed so great as to show plainly to everybody — a reasonable man — that it would be dangerous to jump off at that time and place. How could he have expressed it any better or more strongly for the plaintiff? What he added to this instruction surely did not vitiate it. If the train was running at the rate of 10 or 15 miles an hour, it was reckless to jump from it. There could be no two — 254 — reasonable opinions as to his negligence in such a ease. Burgin v. R. R., supra; Morrow v. R. R., supra; Whitfield v. R. R., 147 N. C., 236, and the other cases already mentioned. Hi’s danger from jumping was not only obvious, but may well be said to have been imminent and inevitable. His escape from it would have been almost miraculous and, at least, providential. There could be no justification for taking any such risk, and the injury would be imputable to his own folly, and he would have himself to blame as the real author of his misfortune. The jury found that he did not receive the invitation from the porter, or that he acted negligently, when he could see the danger for himself and correctly gauge the risk, and this being so, the answer to the second issue was right. The other exceptions become unimportant, in view of what we have said. They relate to the first issue, or were taken to harmless rulings. It is immaterial as to which side of the platform he jumped from; whether he was invited to do so by 'the porter and it was not dangerous, or he was not thus invited, or it was obviously dangerous. In the first view he was not, and in the last he was, guilty of contributory negligence. His own conduct was under review, without regard to the particular part of the steps or platform he used as the locus a quo, and he was given the full benefit of this phase of the case. We have treated the question as if plaintiff was rightfully on the train, with substantially the privileges of a passenger, under Morrow v. R. R., supra, and Whitley v. R. R., 122 N. C., 987; and not as a trespasser, or a mere licensee. But he is subject, also, to the rule applicable to passengers, as laid down in Johnson v. R. R., supra, and the other cases of like tenor, which we heve cited, and which have been approved recently by us in Owens v. R. R., 147 N. C., 357, where the Court, quoting from Johnson v. R. R., says: “It is the duty of the passenger, who sees the train in motion, to ask for it to be stopped; and if it is not done, he ought not to get off”; and also in Reeves v. R. R., 151 N. C., 318, where it is said: “We admit the general rule, as well established, that persons injured while attempting to get — 255 — on or off a moving train cannot recover for any injuries they may sustain,” excepting, however, train bands, brakemen, and the like, under certain circumstances. Our first impression of the case was that the judge had not recited the evidence correctly to the jury, but had told them that the plaintiff was directed by the porter to get off at one side of the platform, when he disobeyed, crossed over to the other side, and jumped from the steps. A careful examination of the record convinces us that we misapprehended what the judge did say, as- to this feature of the case, and find that he substantially and fairly followed the course of the evidence throughout, and also cautioned the jury to rely on their own recollection of it. • We do not see the impropriety of the judge stating that the manner in which the plaintiff struck, or fell on, the ground might be considered by them upon the question as to the speed of the train. • It was a circumstance tending to prove the fact, and, besides, was somewhat in conflict with plaintiff’s statement that the train was moving very slowly. A critical review of the record has not disclosed any error committed on the trial of the case. The jury having found that the plaintiff’s negligence contributed to his injury, judgment was properly entered for the defendant. McAdoo v. R. R., 105 N. C., 140; Baker v. R. R., 118 N. C., 1015; Harvell v. Lumber Co., 154 N. C., 262; Hamilton v. Lumber Co., 160 N. C., 51; Sasser v. Lumber Co., ante, 242. The exceptions as to damages are now immaterial. No error.