
    B. F. WALLACE v. NORFOLK SOUTHERN RAILROAD COMPANY.
    (Filed 3 October, 1917.)
    1. Carriers of Passengers — Intermediate Point — Leaving Train — Contract of Carriage — N egligence.
    One who bas purchased Ms ticket to his destination on a passenger train does not relieve the railroad of its duty to him as such passenger by getting off the train during its stop at an intermediate station, without notice to its employees or objection from them, to see some person there on business.
    2. Carriers of Passengers — Evidence—Singie Witness — Negligence—Declarations — Appeal and Error.
    Where there is evidence of negligence on the part of a railroad company in injuring a passenger while boarding a train at its station, and his. attending physician has testified in defendant’s behalf as to statements he made to his as to how the injury occurred, which, if true, would exclude his recovery, an instruction that, should the jury find the facts to be as testified to by this witness, to answer the issue as to defendant’s negligence, “No,” is properly refused, as such would be the singling out the-testimony of one witness from that of others, relating to the facts at issue, and referring to evidence not directly testified to by him; and especially so, when there is evidence that the plaintiff was then in such pain that he did not understand the meaning of his words.
    3. Instructions — Negligence—Declarations—Verdict Directing — Trials—Contributory Negligence.
    A prayer for instruction that the jury should answer the issue as to-defendant’s negligence in the negative if they found certain declarations made by plaintiff to be true, is improper, when the declarations are not inconsistent with plaintiff’s evidence, which is sufficient to support an affirmative finding, and when the evidence referred to in the requested prayer properly relates to the issue as to contributory negligence.
    4. Appeal and Error — Carriers of Passengers — Moving Train — Contributory Negligence — Instructions—Harmless Error.
    An instruction given in' this ease, that if plaintiff attempted to board a moving train and received the injury complained of, he cannot recover, is not open to defendant’s exception, or one of which he can complain, as boarding a moving train does not always amount to such contributory negligence as will bar a recovery.
    Civil actioN, tried before Daniels, J., at February Term, 1917, of' BEAUFORT.
    This is an action to recover damages for personal injury, caused, as the plaintiff alleges, by the negligence of the defendant, in that, while getting on the train at Pinetown as a passenger, the defendant negligently caused its train to move suddenly and with a violent jerk, which caused him to fall and to be seriously injured.
    The defendant denies negligence, and contends that the plaintiff was-not a passenger at the'time of his injury, and that he was injured by his-own contributory negligence, in tbat be was trying to get on a moving train.
    All of tbe evidence tends to prove tbat tbe plaintiff became a passenger of tbe defendant at "Washington, N. O., and tbat bis destination was Mizell; tbat be left tbe train temporarily at Pinetown, an intermediate station, at wbicb tbe train stopped two or three minutes, for tbe purpose of meeting some one on business, and tbat be was injured when returning to tbe train.
    Tbe evidence of tbe plaintiff tends to prove tbat tbe train was not in motion when be stepped on tbe train; tbat there was ice on tbe step, and tbat while on tbe steps, entering tbe train, there was a violent, unusual movement of tbe train, wbicb caused bis injury.
    Tbe evidence of tbe defendant tends to prove tbat there was no violent movement of tbe train, and only such as was usual and necessary, and tbat tbe train was in motion when tbe plaintiff attempted to return to it.
    Dr. Hunter, a witness for tbe defendant, testified to a conversation with tbe plaintiff on tbe morning of bis injury, while in tbe hospital, as follows:
    “He told me tbat morning bow it happened. He said be went to Washington tbat afternoon, and was going back on tbe night train to Mizell to meet a man named Cherry, and tbat when be got to Pinetown be got off tbe day coach and walked back and crossed over tbe rear of tbe day coach to tbe woods side — that is, tbe side opposite tbe depot— and tbat then be walked back towards tbe Pullman cars, looking for bis man, and then turned around and walked back a way, and by tbat time tbe car was moving, and be grasped tbe handle of tbe steps of tbe car of tbe front coach and missed bis band-bold, and bis body swung between tbe two coaches. He said tbat tbe steps of tbe car tbat was coming bit him in tbe right side. He grasped tbe rail of tbe pasenger- coach and mised tbe steps with bis feet, and tbat tbe steps of tbe oncoming car .struck him on tbe right side, and tbat be fell under tbe cars, and tbat be realized be only bad a second to get out, and that be put bis right foot on tbe rail and pushed bmiself out and got clear, all except tbe foot tbat was on tbe rail, and tbat tbe wheel of tbe car ran over him. He said tbat when be started to get on the train be was on tbe opposite side from tbe station. I don’t think any one on tbe station side could have seen him unless they were looking especially for him. He said tbat tbe car was moving, was tbe reason be missed it. I am a friend of Mr. Wallace. I have treated him for delirium tremens. He said be grabbed tbe band-rail and tbat tbe steps immediately behind struck bis side. It was a year or more before this happened tbat I treated him for delirium tremens. I don’t know bow long be bad been drinking liquor. He was not drinking tbe night this happened.”
    
      Preceding tbe testimony of Dr. Hunter, plaintiff testified: “I couldn’t say for certain whether I told Dr. Hunter how I got hurt or not. I don’t remember whether I did or not. I don’t remember whether I told him that the train was in motion and that I caught hold of one of the hand-rails and that the Pullman step struck me. I couldn’t say whether I made that statement or not. A man in the fix I was in would be liable to tell anything. He wouldn’t be liable to tell a story if he knew what he was doing at the time. If I knew what I was saying, what I told Dr. Hunter was the truth, because I had no object in telling him anything but the truth.”
    Following the testimony of Dr. Hunter, plaintiff was recalled, and said: “I don’t remember that he talked to me at all.” Plaintiff also testified, on his direct examination, that when the train started up at Pinetown, “I was starting up the step and looked around to see if I saw Cherry coming, when they snatched the train. It was a hard snatch — hard enough that it pulled my left hand loose and I swung around and hit the side of the car and went under. The steps were sleety — I saw them. When the train snatched, I swung around and hit the side of the car, and that wrung my hand loose and I fell to the ground, and my foot was cut off while I was down there.”
    The'defendant requested the court to charge the jury as follows:
    1. The court charges you that if you find from the evidence that plaintiff dismounted from the train, left the station and went on the opposite side of the track from where it took on and put off passengers, and that the defendant was not notified of the intention of the plaintiff to leave the train for a temporary purpose, that then the contract of carriage between the plaintiff and defendant would have terminated, and that the defendant would not owe any duty to the plaintiff, except not to injure him, knowingly; and it will be ypur duty, on all of the evidence, if you should find these facts to be true, to answer the first issue “No.”
    2. The court charges you that if you should find the true facts with reference to this injury to be as testified to by Dr. Hunter and as disclosed by his statement which was introduced in evidence, that there would be no negligence on the part of the defendant, and you should answer the first issue “No.”
    3. The court charges you that if you find, from all of the evidence, that plaintiff attempted to board the train after it had started up, and missed his foothold or handhold, that you should answer the second issue “Yes.”
    The court refused to give the first instruction, and did not give the others, except as they appear in the charge, and the defendant excepted.
    There was no motion for judgment of nonsuit, and no request for peremptory instruction.
    
      The jury returned the following verdict:
    1. "Was the plaintiff injured by the negligence of the defendant, as alleged? Answer: Yes.
    2. Did plaintiff contribute to his injury by his own negligence, as alleged by defendant? Answer: No.
    3. "What damages, if any, is plaintiff entitled to recover? Answer: $2,900.
    Judgment was rendered in favor of the plaintiff, and the defendant appealed.
    
      Ward & Grimes for plaintiff.
    
    
      Small, McLean, Bragaw & Rodman for defendant.
    
   Allen, J.,

after stating the case: There is authority for the position presented by the defendant in the first prayer for instruction (S. v. Grand Trunk Ry. Co., 58 Me., 176; De Kay v. R. R., 41 Minn., 178); but the better rule, and one supported by the weight of authority, is that a passenger does not lose his rights as such by leaving the train temporarily at an intermediate station for a lawful purpose. 10 C. J., 624; 4 R. C. L., 1040; R. R. v. Satler, 64 Neb., 636; Dodge v. R. R., 148 Mass., 207; Parsons v. R. R., 113 N. Y., 355; R. R. v. Coggins, 32 C. C. A., 1, and other authorities in the note to the citation to Corpus Juris and Ruling Case Law.

The author in Corpus Juris states the principle as follows: “The relation, ordinarily terminates when a passenger chooses to abandon his journey at a point before reaching the place to which he is entitled to ride. But a temporary departure from the train for any good or reasonable cause, without an intention to abandon transportation, does not terminate the relation. As a general rule, a passenger does not lose his character as such by merely temporarily alighting at an intermediate station, with the express or implied consent of the 'carrier, for any reasonable and usual purpose, such as the procuring of refreshment, the sending or receiving of telegrams, or for the purpose of exercising by walking up and down the platform, or even from motives of curiosity.”

And the Court said, in the Nebraska case, “In this country of long journeys by railway trains there can be no impropriety in a passenger claming the right, which may be sai$ to be established 'by long custom, to leave his car at an intermediate point on his journey, where a stop of any considerable time is made, to send a message, to obtain exercise and relief by walking up and down the platform, or to gratify his curiosity, provided he does not interfere with the employees of the company or run counter to any established rule brought to his notice. In the exercise of this privilege he does not lose his character of passenger, and the common-law duties of tbe carrier are still to be exercised in bis bebalf, and injuries received on account of a failure on tbe part of a carrier to ■observe all its duties toward bim required by tbe rules of tbe common law must be responded to in an action for damages.” In tbe Massachusetts case: “To determine tbe rights of tbe parties in every case, tbe ■question to be answered is, "What shall they be deemed to have contemplated by their contract % Tbe passenger, without losing bis rights while be is in those places to which tbe carrier’s care should extend, may do whatever is naturally and ordinarily incidental to bis passage. If there are telegraph offices at stations along tbe railroad, and tbe carrier furnishes in its cars blanks upon which to write telegraphic messages, and ■stops its train at stations long enough to enable passengers conveniently to send such messages, a purchaser of a ticket over the railroad has a right to suppose that his contract permits him to leave his car at a station for the purpose of sending a telegraphic message, and he has the rights of a passenger while alighting from the train for that purpose, ■and while getting upon it to resume his journey. So of one who leaves a train to obtain refreshments, where it is reasonable and proper for him so to do, and is consistent with the safe continuance of his journey in a usual way. Where one engages transportation for himself by a conveyance which stops from time to time along his route, it may well be implied, in the absence of anything to the contrary, that he has permission to alight for his own convenience at any regular stopping place for passengers, so long as he properly regards all the carrier’s rules and regulations, and provided that his doing so does not interfere with the ■carrier in the performance of his duties.” In the New York case: “We -do not think that a passenger on a railroad train loses his character as ■such by alighting from the cars at a regular station, from motives of ■either business or curiosity, although he has not yet arrived at the terminus of his journey.” And in the case from the Circuit Court of Appeals: “But we think the weight of authority, reason, and custom all require us to hold that where a passenger, without objection by the company or its agents, alights at an intermediate station, which is a station for the discharge and reception of passengers, for any reasonable and usual purpose, like that of refreshments, of the sending or receipt of telegrams, or of exercise by walking up and down the platforms, or the like, he does not cease to be a passenger, and is justified in the belief that the company is exercising due care for his safety.”

These authorities, and the reasoning on which they are based, are satisfactory to us, and justify the refusal to give the first prayer for instruction.

There are several objections to the second prayer. In the first place, Dr. Hunter knew nothing of the facts and did not testify to them, his evidence being confined to a conversation with the plaintiff; but i£ we give a broader interpretation to the prayer, it is objectionable as singling out the evidence of one witness and directing the attention of the jury to that instead of to all the evidence bearing upon the issue.

The answer to the second issue, taken in connection with the charge, also shows that the j ury accepted the theory of the plaintiff that the conversation with Dr. Hunter was while he was in such pain that he did not know what he was saying.

Again, the statement made by Dr. Hunter is not necessarily inconsistent with the evidence of the plaintiff at the trial, that there was a violent movement of the train; and if the two could stand together, the evidence of Dr. Hunter was material on the second issue of contributory negligence, and not on the first issue, to which the prayer was directed.

This is evidently the view taken by his Honor, as he charged the jury: “Now, if this evidence satisfies you, by its greater weight, that the plaintiff got off the train at Pinetown, holding a ticket for a point beyond Pinetown, got on the opposite side of the train from the station and waited until after the train had started to pull out, and that he then attempted to catch the train while it was in motion, then the plaintiff would be guilty of contributory negligence, and it would be your duty to answer the second issue ‘Yes.’ ”

This was perhaps too favorable to the defendant, as-it is not contributory negligence in all cases to get on a train while in motion, but of this the defendant cannot complain, and this excerpt from the charge also shows that the third prayer was given.

No error.  