
    GEORGE GRAHAM v. NORFOLK SOUTHERN RAILWAY COMPANY.
    (Filed 12 September, 1917.)
    1. Carrier of Passengers — Infirm Passenger — Duty of Carrier — Negligence.
    A carrier of passengers is not liable for’an injury to a passenger leaving the car at liis destination, caused solely by bis physical infirmity, when the assistance of its employees in charge of the cars had not been requested upon opportunity thereto afforded, and in the exercise of proper care of the passengers they were in ignorance of the circumstances requiring their assistance.
    2. Appeal and Error — Verdict Set Aside — Matters of Law.
    Where the trial judge sets aside a verdict as a matter of law, and not within his discretion, an appeal will lie; and the verdict reinstated when he was in error in so acting.
    Civil actioN tried before Daniels, J., at February Term, 1917, of Beaufort, upon this issue:
    "Was plaintiff injured by negligence of defendant as alleged? Answer: “No.”
    His Honor set aside the verdict for error of law in charging jury and not in his discretion. Defendant excepted and appealed. Plaintiff also appealed.
    
      Daniel & Warren for plaintiff.
    
    
      Small, MacLean, Bragaw & Rodman for defendant.
    
   DEPENDANT’S APPEAL.

Brown, J.

Plaintiff testified tbat be was a passenger for Wilmar on defendant’s road; tbat tbe porter passed tbrougb car and called station; tbat be was crippled at time and started for door in company witb another negro named Fulcher; as be reached second step, train was jerked violently and be was thrown on bis bead and a dent made in it, causing serious injury, confining him for three months.

Plaintiff offered other evidence tending to prove injury and damage. Defendant denied tbe injury and tbe negligence and offered evidence tending to prove tbat the conductor took tbe proper position between colored and white cars when train stopped at Wilmar, and was in a position to help any passenger needing assistance; tbat plaintiff did not ask for assistance, and tbat conductor did not see him fall. Defendant offered other evidence tending to corroborate tbjs, and also testimony of a physician tbat be examined plaintiff ten days after tbe alleged injury and found mo wound -in bis bead or other evidence of injury, and tbat plaintiff was then in good physical condition.

Tbe jury after taking tbe case returned and asked certain information. Tbe following colloquy took place between tbe jury and the judge:

Q. The jury wants to ask a little information; whether tbe conductor and tbe porter — whether the law requires the conductor and porter to be at tbe exit of tbe coach when tbe passengers are getting off ?

A. I don’t know tbat tbat is so; tbe evidence here was tbat their place was between tbe colored coach and tbe white coach.

Q. What tbe jury wants to know is, whether the law requires them to be there?

A. Neither the porter or conductor is required to assist the passengers unless the passenger requests it, or unless in the position they occupy they could see, in the exercise of reasonable care, that they were in need of assistance.

Q. There is one other question; whether tbe porter is required to open tbe door and call tbe stations?

A. The law requires tbat an announcement shall be made; tbe testimony in this case was that the porter went through the car; I don’t think there is any requirement as to the'place they shall occupy.

Q. The conductor and porter were not required to have a regular station when tbe passengers were getting out of tbe train?

A. In this case tbe evidence was tbat they were at their usual places where they stood, between tbe two cars; and so far as appears, they were in tbe places where they ought to have been.

In view of tbe evidence in this case we are of opinion that there is no substantial error in above instructions. It is well settled that when a passenger is sick, blind, or crippled and infirm, and his condition is apparent or made hnown to tbe carrier, it is bound to render tbe passenger necessary assistance in boarding or alighting from its cars. 4 R. C. L., 1235. It is also well settled tbat a carrier will not be liable for failure to assist wben not asked and wben ignorant of tbe need for assistance. Ibid., Southern Ry. v. Hobbs, 63 L. R. A., 68; Anderson v. R. R., 161 N. C., 462; Clark v. Traction Co., 138 N. C., 82.

Tbe evidence of plaintiff is tbat tbe porter came tbrougb tbe car and called tbe station; tbat be did not ask for assistance or make known bis condition to tbe porter or conductor, but undertook to get off tbe car in company witb one Fulcber. Plaintiff bad ample opportunity to notify tbe conductor wben be took up bis ticket, and also tbe porter wben be passed tbrougb tbe car before reaching Wilmar.

In view of tbe evidence, we tbink tbe judge erred in setting aside tbe verdict as matter of-law.

The verdict will be'reinstated and judgment rendered for defendant.

Eeversed.

PLAINTIFF’S APPEAL.

Plaintiff’s assignments of error are all directed to tbe charge of tbe . court.

It is assigned as error tbat tbe court charged tbat no duty rested on defendant to assist tbe plaintiff in getting off tbe train, but only to allow him a reasonable time to get off. Tbe full instruction is as follows :

“Tbe court charges you tbat there was no duty resting on defendant to assist plaintiff in getting off tbe train, but only to allow bim a reasonable time to get off, unless be bad requested, called attention to any infirmity which be might have bad and requested assistance, or if in attempting to get off tbe defendant’s conductor .or porter could, in tbe exercise of reasonable care — such as they were required to bestow at tbe time passengers were alighting — could have observed tbat be was crippled and unable to help himself.”

There can be no question tbat this is a correct statement of tbe law as universally declared by tbe courts and text-writers.

We have examined tbe. other assignments of error, and tbink they are without merit and are covered by what is said' in tbe opinion in defendant’s appeal. Tbe charge as a whole appears to be a fair and clear presentation of tbe case to tbe jury.

On plaintiff’s appeal we find

No error.  