
    WHISENHANT v. RAILROAD.
    (Filed December 20, 1904).
    1. NEGLIGENCE — Master and Servant.
    
    Where a freight train on which plaintiff and other laborers of a road were riding home was given a sudden increase of speed and a violent jerk by the engineer putting on steam in response to a signal from the conductor when the slowing train was naturally expected to be about to come to a full stop to let the laborers off, there was negligence on the part of the railroad.
    2. NEGLIGENCE — Contributory Negligence — Proximate Cause — -Evidence — Questions for Jury.
    
    In this action against a railroad for personal injuries the evidence of contributory negligence of the plaintiff and as to the proximate cause of the injury should have been submitted to the jury.
    Montgomery, J., dissenting.
    ActioN by Joseph Whisenhant against the Southern Railroad Company, heard by Judge Walter II. Neal and a jury, at October Term, 1904, of fclio Superior Court of Bubke County. From a judgment for the defendant the plaintiff appealed.
    
      Avery & Avery and Avery & Erwin, for the plaintiff.
    
      S. J. Ervin, for the defendant.
   Clark, C. J.

The plaintiff, with other laborers working on the defendant’s road west of Morganton, was daily hauled to his work and returned home on the work or gravel train. This train stopped at Morganton daily in -the evening in order that the plaintiff and other laborers living at that place might get off. There was evidence tending to show the following to be the facts on this occasion: The train was returning from work and was funning backward, the caboose in front, then four flat cars, on which the laborers sat on the floor, there being no seats nor railing, then the tender and engine. The caboose was locked so the laborers could npt enter it. The train slowed up for Morganton, whereupon the plaintiff got up and went to the platform of the rear end of the caboose, it not being safe to stand up on the flat car, and stood on the top step to be ready to get off when the train stopped. There were no steps to the flat car by which he could get off. The engineer, instead of stopping as usual at that point in response to a signal from the conductor, suddenly put on steam which caused a sudden and violent jerk which threw the plaintiff on the track, broke his skull and otherwise injured him. This sudden increase of speed and violent jerk, when the slowing train was naturally expected to be about to come to a full stop to let the laborers living in Morganton get off, was negligence on the part of the defendant. The plaintiff could not safely have stood up on the flat car, and in stepping upon the rear platform of the caboose car, to be ready to get off more readily and promptly, the plaintiff was not guilty of contributory negligence unless it was shown that this was a more unsafe place. Whether it was more unsafe was a question for the jury. This is not the case of one sitting in a passenger coach getting up and going out to stand upon the platform. Here the plaintiff could not get into the caboose. He could not stand up on the flat car. Whether in going upon the platform of the caboose he took a greater risk and thus incurred contributory negligence, and whether, if he did, the subsequent negligence of the defendant in unexpectedly increasing speed (instead of stopping as usual), and the sudden and violent jerk which threw the plaintiff off the train injuring him, were not the proximate cause of the injury — were eminently questions of fact which only a jury could determine. It was, therefore, error to nonsuit the plaintiff, for by so doing the Judge passed upon the issues of fact which should determine this cause: (1) Whether or not the plaintiff was guilty of contributory negligence; (2) if that was true, was such contributory negligence, or the subsequent negligence of the defendant by increasing speed and causing the plaintiff to be thrown off, the proximate cause of the injury. If the plaintiff could have escaped unhurt but for the jerk, the negligence of the conductor in signaling at that point for an increase of speed, instead of stopping as usual for the plaintiff and others to get off, as from custom they had a right to expect, and the negligence of the engineer in suddenly turning on steam thus causing a violent and unexpected jerk, was the proximate cause.

Upon a nonsuit, the evidence must be taken in the most favorable light for the plaintiff. The cause should have been submitted to the jury with appropriate instructions upon the different phases of the evidence. The plaintiff is entitled to have a jury pass upon his allegations and proofs, as guaranteed by the Constitution.

Error.

Montgomery, J.,

dissenting. This action was brought by the plaintiff to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the conductor on one of defendant’s trains. The negligence complained of is, in substance, as follows: That the defendant owed the plaintiff, who was employed by defendant as a laborer engaged in the repairing of the railroad track, the duty of carrying the plaintiff to and from Morganton on his going to and returning from his work. That the habit and custom of the defendant was to slow down a rate of speed of the engine and train upon reaching a cross street in Morgan-ton, near to station, so that the plaintiff could alight and go to his home; that on one of these return trips the plaintiff, while standing on the platform of the caboose when the train had slackened its speed and he was ready to alight, was suddenly hurled to the ground through the negligent conduct of the conductor, who suddenly and without warning to the plaintiff gave a signal to the engineer which resulted in a violent jerk. The evidence did not make good the allegations of the complaint. The plaintiff’s evidence was to the effect that it was the habit and custom of the conductor to stop the train at the cross street in Morganton and that the plaintiff always got on and off after the train had been stopped. The plaintiff’s evidence was, further, that as the train approached Mor-ganton and had slowed to a low rate of speed, that is, as he said, from three to Jive miles an hour, he went out on the platform with a bundle and bucket in one hand and holding with the other to an iron rod attached to the platform, and just as he was about to alight was thrown off and to the ground through a sudden jerk and motion of the cars and badly hurt. His testimony further was that if he had been sitting down on the flat cars he would have been perfectly safe.

The much-discussed question in the oral arguments and in the briefs on the subject of contributory negligence is not necessary for ns to discuss from tbe view we have taken of tbe case. We cannot see in wbat particular tbe defendant bas been negligent. There cannot be culpable negligence in any case where tbe party charged with tbe negligence owes no duty to tbe other. In Carter v. Lumber Co., 129 N. C., 203, tbe Court approves of the definition of negligence given by Alderson, B., in Blythe v. Water-works, 25 L. J. Eq., 213, which is as follows: “The omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do; or doing something which a provident and reasonable man would not do; and an action may be brought if thereby mischief is caused to a third party not intentionally.” Another good definition of negligence is found in 7 A. & E. Ency. of Law, 370, which is in these words: “Actionable negligence is the inadvertent failure of a legally responsible person to use ordinary care under the circumstances in observing or performing a non-contractual duty implied by law, which failure is the proximate cause of injury to a person to whom the duty is due.” Now, under the evidence in this case, I mean the plaintiff’s evidence, the duty of the defendant was to furnish the plaintiff safe transportation to Morganton, to stop the train at or near the station, at the usual place where the plaintiff got off, that he might alight in safety. The conductor did not stop the train as he ought to have done, but that was not the cause of the injury. The cause of the injury was the sudden jerk of the train by which the plaintiff was thrown off the car and injured. If the jerk had occurred at the stopping place, and after the train had stopped or was “nearly, almost to full stop,” that is, very slowly and slightly, and gently creeping along, that the plaintiff might alight, the defendant would have been negligent. Nance v. Railroad, 94 N. C., 619; Denny v. Railroad, 132 N. C., 340. But tbe train in our case was moving at from three to five miles an hour, and tbe defendant bad been standing some little time on tbe platform. Tbe defendant did not owe bim tbe duty to keep a lookout for tbe plaintiff on tbe platform. Tbe conductor bad a right to suppose that he was in a place of safety which bad been provided for tbe laborers on that train. A jerk of the cars, therefore, Avhile tbe train was in motion was not negligence in tbe conductor, so far as this plaintiff was concerned, who was standing on tbe platform. Tbe defendant owed tbe plaintiff no duty to look out for bim and to care for bim in that unusual place, that place of danger. Of course, if tbe conductor or engineer bad seen tbe plaintiff in tbe situation in which be placed himself, tbe sudden jerk of tbe cars, if it bad occurred then, would have been evidence of negligence. Or if tbe plaintiff bad been where be ought to have been, in a safe place, by bis own admission, and bad been injured by tbe sudden jerk, then that fact would have been evidence of negligence on tbe part of tbe defendant. Denny v. Railroad, supra. I think there was no error in. tbe dismissal of the action as by nonsuit.  