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.
*671Where 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 *672as -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 *673significance 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, *674pne 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,