Fortune v. Southern Railway Co., 150 N.C. 695 (1909)

May 21, 1909 · Supreme Court of North Carolina
150 N.C. 695


(Filed 21 May, 1909.)

1. Carriers of Passengers — Negligence — Platform — Seeing Passengers Off — Custom—Invitation Implied — Ordinary Care — Trespass.

When a wife who has accompanied her husband to the train (the latter a passenger, about to depart thereon) is injured while upon the platform of a. stationary coach which her husband was to take, by being suddenly thrown to the ground by the negligent and violent contact of another car run into it, the railroad 'company is liable in damages; the custom in such instances beipg an implied invitation to the wife, imposing upon the company the duty to exercise ordinary care for-her safety, and not merely that of not willfully injuring her, as in a case of trespass.

2. Carriers of Passengers — Contributory Negligence — Seeing Passengers Off — Attaching Coach — Custom.

When there was evidence that a railroad company, customarily left an empty coach at a station and opened it for passengers ten minutes before the departure of the train to which it was to be *696attached, for the use of passengers to further points on the same road, and that the plaintiff and her husband (the' latter having taken passage on this coach and the former seeing him off) attempted to enter the coach a few moments before train time, but found it locked, and while there, thus engaged, another car was suddenly run into this coach with great violence, throwing feme plaintiff to the ground.and violently injuring her: Held, under the evidence of this ease, not to constitute contributory negligence.

ActioN tried before Peebles, J., and a jury, at July Term, 1908, of Haywood, to recover damages for a personal injury alleged to have been received by plaintiff, Connie E. Fortune, caused by tbe negligence of tbe defendant.

These issues were submitted:

1. “Was tbe plaintiff, O. E. Fortune, injured by tbe negligence of tbe defendant, as alleged in tbe complaint ?” Answer: “Yes.”

2. “Did tbe plaintiff, Connie E. Fortune, by ber own negligence, contribute to ber injury, as alleged in tbe answer ?” Answer : “No.”

3. “What damage, if any,-is plaintiff, Connie E. Fortune, entitled to recover?” Answer: “Three hundred and fifty dollars.” o

Thereupon bis Honor, upon tbe ground that be bad committed an error in not sustaining defendant’s motion to nonsuit, set aside tbe findings of tbe jury and allowed tbe motion, from which judgment plaintiff appealed.

In this Court it was agreed by counsel that if tbe opinion of tbe Court should be with tbe plaintiff, judgment should be entered for "the sum assessed -by tbe jury.

W. B. Ferguson, Frank Carter and H. C. Chedester for plaintiff.

Moore & Rollins for defendant.

Brown, J.

Tbe evidence in this case tends to prove that tbe plaintiff accompanied her - husband to defendant’s station at Waynesville for tbe purpose of seeing him off as a passenger for Asheville. For tbe purpose of accommodating the increased travel in summer, defendant bad daily an extra coach left at a *697certain place on tlie side track close to tbe station at Waynes-ville, wbicb was attached to tbe train wben it arrived at Waynes-ville from'tbe west. It was customary to open tbis extra coacli some ten minutes before train time and to permit passengers to enter it. On tbe date of tbe injury tbe car was standing at tbe usual place on tbe side track, where passengers were accustomed to board it. The plaintiff and her husband stepped on tbe platform of this'car, with tbe view of entering it, about two minutes before train time, but finding tbe door locked, they were on tbe point of stepping off, wben tbe collision occurred wbicb caused tbe plaintiff’s injury. They were not on tbe platform exceeding two minutes. At tbis time there was a large concourse of persons at tbe station, waiting for tbe train. Under these conditions, and just as plaintiff and her husband were about to leave tbe platform, an engine was run into tbe side track, at a dangerous rate of speed, variously estimated by tbe witnesses at from fifteen to thirty miles an hour, and was caused to strike a car standing at tbe station platform and to drive it against tbe car upon wbicb plaintiff and her husband were standing, with such force that tbe ends of tbe two cars buckled and rose from tbe track, and tbe shock threw tbe plaintiff down and injured lier.

Tbe learned counsel for defendant, in bis argument before tbis Court, rested bis defense very largely upon tbe defense of contributory negligence upon tbe part of tbe plaintiff in attempting to enter the car. We do not think there is any foundation for such defense upon tbe facts of tbe case. Tbe evidence discloses no negligent conduct upon tbe part of the plaintiff, while on tbe ear, wbicb in tbe least degree contributed to tbe injury she received. It will not be contended in tbis day and generation that it is negligence for a wife to escort her husband to tbe station and tc board a ear momentarily to bid him g-ood-bye.

Tbe defense must properly rest upon tbe theory that tbe plaintiff was on tbe car without defendant’s consent, and that, being a trespasser, tbe defendant owed her no duty, except to refrain from willful injury, and therefore as to her is guilty of no negligent conduct. Tbis view of the evidence is properly 'presented under tbe first issue.

*698It is undoubtedly true that if plaintiff bad been a trespasser, stealing a ride, as in Bailey v. Railroad, 149 N. C., 169, or a huckster entering tbe train to sell bis wares, as in Reterson’s case, 143 N. C., 263, sbe could not recover. But .plaintiff was not in any sense a trespasser, and under tbe circumstances of this case ber presence on tbe car platform was neither wrongful nor negligent. Her presence there was not wrongful, because a wife who escorts a husband, or a husband a wife, to a seat on a railway train is not a mere trespasser to whom tbe company owes no duty except to abstain from willful injury. It is true, plaintiff was not a passenger towards whom tbe defendant was bound to exercise tbe highest degree of care, but sbe was on its premises by its implied invitation, and it was bound to exercise ordinary care for ber safety. Railway companies owe this duty at least to those whom, in practice, they allow to accompany passengers in order to see them off on trains without asking-special permission. Railroad v. Lawton, 55 Ark., 428; Packet Co. v. Wilson, 95 Tend.; 1 Hutchinson on Carriers, sec. 237; Whitley v. Railroad, 122 N. C., 987; Morrow v. Railroad; 134 N. C., 92; Moore v. Railroad, 119 Mich., 613. This implied invitation and consequent duty to those who, impelled by ties of relationship and affection, go to “welcome tbe coming, or speed tbe parting, guest,” is founded on recognized social observances which have become an universal and inseparable concomitant of modern railway traffic.

Nor do we think tbe husband and wife were wholly unwarranted in attempting to enter the car at the time and under the circumstances in evidence. The car was an extra coach, brought up every morning from Asheville and left at Vayiresville for the afternoon train returning there. It usually remained at the station on the side track at the place the accident occurred. It was the defendant’s custom to open the car at that place ten minutes before train time, and passengers for Asheville at once boarded it and, upon arrival of the train, it was coupled on.

In accordance with this custom, inaugurated and permitted by defendant, plaintiff and her husband boarded the car two minutes before train time in order that he might secure a seat. Finding it locked, they started back to the station, remaining *699oil the car platform in all not more than two minutes, but were caught in the collision. There is no evidence that they lingered on the platform unduly long or did any act that a person of reasonable prudence would not be expected to do under the circumstances. We think his Honor’s first impressions of this case were the best:

The cause is remanded, with direction to enter judgment for the damages ($350) assessed by the jury.