
    D. D. SUTTLE v. SOUTHERN RAILWAY COMPANY.
    (Filed 19 May, 1909.)
    1. Railroads — Passengers — Caboose Cars — Care Required — Negligence.
    A railway company owes it as a duty to its passengers on a freight train, whether on a passenger coach or caboose, or a car temporarily fitted for the purpose, to exercise the highest degree of care and diligence of which such trains are susceptible; and while the difference in character and purposes of the trains may and should be given due consideration, there is no relaxation as to the degree of care required from the company, and it is responsible for an injury caused to a passenger on a caboose car, occasioned by a breach of its duty to exercise the carp indicated.
    2. Same — Questions for Jury.
    Contributory negligence cannot be determined as a matter of law upon evidence tending to show that the plaintiff was a passenger on a caboose car of defendant railroad company, got up from his seat, in a natural way, to get a drink of water, at a time his car was at a standstill at a station, while other cars of the freight train to which the caboose had been attached were being shifted, and' that, when there was no reason to expect any harm would ensue, the engineer unexpectedly backed other cars onto the caboose with violence great and unusual, throwing him down, causing the serious injury complained of.
    3. Same — Evidence—Contributory Negligence.
    In an action for damages occasioned to a passenger on defendant railroad company’s caboose car, caused by coupling other cars onto it in an unusually violent and unexpected manner, it is not necessary for tlie passenger to anticipate extraordinary and unusual dangers incident to tlie company’s negligence, producing the injury complained of; and when from his testimony it appears that he had been injured by getting up from his seat to go for a drink of water, in the usual and natural manner, his testimony, given in the course of a long cross-examination, that he was paying no attention when the coupling was made, should be understood as meaning that he was not noticing the coupling at the time and was not expecting to be injured by such a severe and unusual shock.
    ' ActioN tried before -Ward, Jand a jury, at October Term, 1908, of Buncombe.
    Tbe evidence tended to show tbat, on or about 8 October, 1905, plaintiff was a passenger on a mixed train of-defendant company — a freight train, having a passenger coach attached — ■ from Shelby to Asheville, N. 0., and while in the coach he was knocked down and seriously injured by a sudden and unusual jolt given by defendant’s employees in shifting other cars of the train which had been detached. Speaking to the occurrence, the plaintiff testified, in part, as follows:
    Question: “Did you get hurt at any time while on that trip ?”
    Answer: “Yes. We run out six miles, to a little station called Washburn, and they stopped, and after stopping they cut the coach that I was in loose from the freight — it was a mixed train, and they were shifting some cars out — and while my coach was standing there, I went to the water closet to get some water, and just as I was in the act of getting hold of the dipper the freight struck- the front end of the coach, and I was standing in about four feet of the .corner post of the water closet, and that post struck me on the side of the head, here, and the blood ran down, and there was the back of a seat right to my left and that was shelving towards me, and when I fell it bent my back over that, and from there I rolled over into the aisle; and I laid there about a minpte and a half, and while I was down I could not move or speak. And there was one of the train hands in there, working on his books, and, after I had laid there some time, heasked me if Í was hurt, and I did not answer him — I could not answer; and after I revived a little I made an effort to raise my right arm up and could not move it, and then I took bold with my left band and got bold of'tbis seat in front of me and failed to do- it, and tben I asked him if be would belp me up, and be came and helped me up, and as I went back to my seat I noticed most óf tbe cushions off of tbe seats on tbe floor, and my seat was that way. Tbe lick was so heavy that it had driven tbe seats from under tbe cushions and many of tbe cushions were on tbe floor. After I got in my seat, I was sitting, bolding to tbe seat in front of me, and they slashed into it again, ■and I hollered, and tbe flagman, or whoever it was that was in with me, jumped up and ran out, and from that on there was no further trouble with tbe train.”
    Q. “You say they ‘slashed’'into it?”
    A. “I mean that tbe freight cars that were shifting — tbe cars that were making some change — and while I was standing — ”
    Q. “You say that they slashed into you; tbe jury don’t know what that means.”
    A. “They backed into it with such force.”
    Q. “With bow much force did they come back tbe second time ?”
    A. “Equally as much as the-first time, or more.”
    At tbe close of plaintiff’s testimony defendant moved to non-suit plaintiff. Motion denied, and defendant excepted.
    Under a proper charge, tbe question of defendant’s responsibility was submitted on tbe three ordinary issues in actions of negligence:
    First. As to negligence of defendant causing tbe injury.
    Second. Contributory negligence on part of plaintiff.
    Third. Damages.
    There was verdict in favor of plaintiff, and from judgment on tbe verdict defendant excepted and appealed.
    
      Adams & Adams, Frank Carter and H. C. Chedester for plaintiff.
    
      Moore & Rollins for defendant.
   Hoke, J.,

after stating tbe case: There has been no error committed in tbe trial of this case which gives tbe defendant" any just ground of complaint.

Where a person has been received as a passenger on one of these mixed trains, whether in a passenger coach or caboose or a car temporarily fitted for the purpose, he is entitled to the highest degree of “care and diligence of which such trains are susceptible.” While the difference in the character and purposes of the trains may, and should be, given due consideration in reference to their proper management and control, there is no relaxation as to the degree of care required towards a passenger on the part of the company’s employees, and for a breach of duty of the kind indicated the company may be held responsible. Miller v. Railroad, 144 N. C., 545; Railroad v. Horst, 93 U. S., 291; Sprague v. Railroad, 92 Fed., 59; Railroad v. Holcomb, 44 Kans., 332.

In Sprague v. Railroad, supra, Goff, Circuit Judge, for the Court, quotes with approval from Railroad v. Horst, supra, and, in reference to this matter, said:

“The court below seems to have founded its conclusion on the fact that the plaintiffs were traveling in a caboose car, and not on a regular passenger train. But we are of opinion that, as the defendant sold tickets to the plaintiffs, to be used in said car, which was provided for the accommodation of passengers in general, the plaintiffs were entitled to demand and have of and from the defendant the highest possible degree of care and diligence, regardless of 'the kind of train they were on. A railroad company is liable for the negligence of its servants resulting injuriously to its passengers, whether they are traveling in the luxurious cars of the modern train or in the uncomfortable caboose of the local freight; for in all such cases the law requires that the highest, degree of care that is practicable be exercised. The reasons for this rule are well known and are based upon wise public policy and the plainest principles of justice. The Supreme Court of the United States, in alluding to this matter (Railroad v. Horst, 93 U. S., 291), said: ‘Life and limb are as valuable, and there is the same right to safety, in the caboose as in the palace car. The same formidable power gives the traction in both cases. The rule is uniformly applied to passenger trains. The same considerations apply to freight trains. The same dangers are common to both. Such care and diligence are as -effectual and as important upon the latter as upon the former, and not more difficult to exercise. There is no reason, in the nature of things, why the passenger should not be as safe upon one as the other. With proper vigilance on the part of the carrier, he is so. The passenger has no authority upon either, except as to the personal care of himself. The conductor is the animating and controlling spirit of the mechanism employed. The public have no choice but to use it. * * * The rule is beneficial to both parties. It tends to give protection to the traveler, and warns the carrier against the consequences of delinquency. A lower degree of vigilance than that required would have averted the catastrophe from which this litigation has arisen. Dunn v. Railroad, 58 Me., 187; Tuller v. Talbot, 23 Ill., 357; Railroad v. Thompson, 56 Ill., 138.’ ”

This being the correct principle, a mere statement of the testimony above set out affords convincing evidence of negligence on the part of the defendant company causing the injury, and-justifies the finding of the jury on the first issue. The defendant did not seriously contend that there was error in this respect, but it was earnestly urged that upon the entire testimony the court should have held, as a matter of law, that the defendant was guilty of contributory negligence barring recovery, and this on the evidence above stated, and the additional questions and answers appearing in the course of a long cross-examination, as follows:

Question: “You know fhat the jolting and jars on a freight train are rougher than they are on a passenger train, don’t you ?”■

Answer: “I don’t know about the couplings.”

Q. “Did you ever see them handling the trains — the starting and the coupling?”

A. “Yes; I know they are rough.”

Q. “I ask you if you were not simply standing in that car, paying.no attention when the coupling was made, and you fell over on the side ?”

A. “Of course, I was paying no attention, my coach being standing still, and I was struck and knocked down.”

There is doubt if this answer should be given any spiecial significance on tbe subject, coming, as it did, in the midst of a prolonged examination, in which the witness had placed the entire facts before the jury. Clearly the witness did not mean to say that he was =at the time entirely unobservant of care for his own safety, but, in reference to the question, and by fair intendment, he should be understood to mean that he was' not noticing the coupling at the time, nor expecting to be knocked down by any such severe and unusual shock. Certainly, he had nothing to indicate any lack of care, for he had only gotten up to get a drink of water, and the jolt came just as he was getting hold of the dipper. In any event, the authorities are to the effect that getting up for this purpose, in the usual way, and on a train of this character, does not import negligence as a matter of law. While a passenger on these mixed trains is held to a degree of care commensurate with the increased dangers which are ordinarily incident to their management, he is entitled to have his conduct weighed and his rights determined in reference to such trains when carefully and properly managed, and he is not required to'anticipate such extraordinary and unusual dangers as are incident to the company’s negligence.

This is the rule as stated by Associate Justice Walker, for the Court, in the ease of Marable v. Railroad, 142 N. C., 557, in -which it was held that:

“4. In taking passage on a freight train a passenger assumes the usual risks incident to traveling on such trains, when managed by prudent and competent men in - a careful manner,”

And, in reference to the question directly presented here, it is very generally accepted that standing up, under certain circumstances, or getting up from one’s seat for a natural purpose, or going for a drink of water and the like, is not negligence per se, but the question should, as a rule, be referred to the jury under a proper charge. Tillett v. Railroad, 118 N. C., 1031; Bunn v. Railroad, 64 N. J. L., 30; Railroad v. Masterson, 16 Ind. App., 323; Hutchinson on Carriers (3d Ed.), sec. 1217.

In Tillett's case it was held:

“7. A passenger has a right to presume that the servants of the carrier will properly discharge their duties. Consequently, pne wlio enters a railroad passenger ear is not guilty of contributory negligence because be fails to rusb into tbe first seat be reaches, altbougb be knows the train is about to be coupled.”

Tbe case to which we were referred by counsel for tbe defendant (Smith v. Railroad, 99 N. C., 241) does not conflict with tbe positions sustained by these authorities. In that case tbe plaintiff was held guilty of contributory negligence because, from bis own testimony it appeared that be bad taken a position on tbe arm of tbe car seat, thus inviting tbe injury from which be bad suffered; whether, in tbe present and improved methods of control and management of these trains, this ruling would now obtain, a question to which we were invited by tbe argument of plaintiff’s counsel, it is not necessary to determine, for in tbe case before us no such, fact appears. Tbe evidence shows that plaintiff, a passenger on defendánt’s train, got up in a natural way and went for a drink of water, at a time when bis car was at a standstill, and when there was no reason to expect that any barm would ensue, and when none would have ensued if defendant’s train bad been carefully and properly managed.

There is no error, and tbe judgment below is affirmed.

No Error,  