Dunnevant v. Southern Railway Co., 167 N.C. 232 (1914)

Nov. 11, 1914 · Supreme Court of North Carolina
167 N.C. 232


(Filed 11 November, 1914.)

1. Appeal and Error — Trials—Evidence—Facts Admitted.

Tbe exclusion of evidence relating to facts admitted at the trial is not erroneous.

2. Trials — Contributory Negligence — Evidence—Nonsuit.

A motion to nonsuit upon tbe evidence is properly allowed when tbe plaintiff’s own evidence discloses, such contributory negligence as bars bis recovery.

3. Carriers of Passengers — Stations—Safe Egress — Contributory Negligence —Trials—Questions for Court.

Where a person sui juris is lawfully on tbe platform of a railroad company,’ at night, with a lighted lantern near him, which be bad used in going there, and knew tbe existing conditions, that tbe platform was elevated some distance from tbe ground and was without guard or railing at a certain place used for tbe handling of freight, which was a dark and dangerous place at tbe time; and the light from his lantern was shining upon some steps near him from the platform to the ground, a shorter distance, where the railroad had provided a railing or guard, his attempting to leave the platform, without his lantern, by the dangerous way, instead of by the safe way opened to him, is such contributory negligence, as a matter of law, as will bar his recovery in his action for damages against the railroad company for its alleged negligence in failing to provide a safe place for the use of its passengers.

Appeal by plaintiff from Lane, J., at August Term, 1913, of Caswell.

This is a civil action for personal injury. From a judgment of non-suit tbe plaintiff appealed.

JS. F. Upchurch, L. M. Garitón, B. N. Simms, and W. H. Lyon, Jr., for plaintiff.

Manly, Hendren & Womble for defendant.

BbowN, J.

Tbe .defendant offered no evidence. Tbe plaintiff’s evidence tends to prove tbat be'was rightfully at defendant’s station at Pelbam on tbe nigbt of 14 June, 1912, witb relatives, to see them safely on tbe defendant’s train. Tbe track at Pelbam runs north and south. *233Tbe station ié a rectangular building running parallel witb the railway tracks, with a platform extending around the west, south, and east sides.

In the south end of the station are two waiting-rooms, with one door opening from each waiting-room onto the south platform. Two flights of steps lead down from the south platform, one at the west corner and one at the east corner. There is a railing extending along the edge of the south platform from one flight of steps to the other. The platforms on the west and on the east side of the station were used for loading and unloading freight, and had no railings.-

On the night of the accident the plaintiff and relatives went to the station about 11:30 o’clock. Just before the accident, the'plaintiff was sitting on a bench between the two waiting-room doors, on the south platform. The plaintiff had carried a lantern with him to the station, and had placed the lantern at a point on the platform between the west end of the bench on which he was sitting and the steps at the southwest corner. The plaintiff was sitting on the west end of the bench, near to the lantern. The plaintiff had been to the station often in the daytime, and was familiar with the construction of the depot and its surroundings.

According to his statement, he started to leave the platform to answer a call of nature, but instead of going down the steps at the southwest corner, which were nearest him, and across which his lantern was shining, or of taking the lantern with him, with full knowledge of the conditions, he went into the dark toward the steps at the southeast corner, went around on the platform east of the waiting-room, a distance variously estimated by plaintiff’s witnesses from 1% feet to several steps, and fell off the platform.

The platform at the west side next to the steps at the southwest comer is 4% feet from the ground, and on the east side near the steps at the southeast corner 7 feet 3 inches from the ground.

The only exception to the evidence relates to the fact that the plaintiff was at the station for a rightful purpose, and the question which was excluded was for the purpose of showing that he carried - Miss Whitlar to the station and paid her railroad fare. This is immaterial, in view of the fact that the defendant admits that the plaintiff was rightfully at the station.

We think his Honor properly sustained the motion to nonsuit. It is well settled in this State that where the plaintiff’s own evidence discloses such contributory negligence as bars recovery, a motion for nonsuit should be sustained. Royster v. R. R., 147 N. C., 347; Fulghum v. R. R., 158 N. C., 555.

If two ways are open to a person to use, one safe and the other dangerous, the choice of the dangerous way, with knowledge of the danger, constitutes contributory negligence. Fulghum v. R. R., 158 N. C., 555; *23429 Cyc., 520; Whales v. Gas Light Co., 45 N. E., 363; Johnson v. Wilcox, 19 Atl., 939. And where a person sui juris knows of a dangerous condition and voluntarily goes into tbe place of danger, be is guilty of contributory negligence, wbicb will bar bis recovery. Royster v. R. R., supra; Fulghum v. R. R., supra; Saunders v. Smith Realty Co., 86 Atl., bot. p. 405; Columbus Ry. v. Asbell, 66 S. E., 902; Southern Ry. v. Rowe, 59 S. E., 462; Woodman v. Pitman, 10 Atl., 321.

Tbe plaintiff was in a place of absolute safety. He was sitting on tbe west end of tbe bench near tbe steps at tbe southwest corner of tbe platform. His lantern was sitting between tbe end of tbe bench and these steps. He bad been to tbe station many times in tbe daytime and bad full knowledge of tbe conditions around tbe station. He knew that tbe platform on tbe east side was several feet above tbe ground.

To use bis language, “I knew there was no rail around tbe east platform. I could see that there was no light at all on tbe east platform. It was dark as pitch out there.”

"With full knowledge of tbe dangerous conditions, and with bis own lantern that bad lighted bis way to tbe station sitting by bis side, be voluntarily went to tbe east platfofm in the darkness, where be knew tbe conditions were dangerous.

He bad an absolutely safe way at band. He could have either gone down tbe steps at tbe southwest corner, wbicb were nearest him, and wbicb were only 4% feet high, and across wbicb, according to bis own statement, bis lantern was shining, or be could have adopted tbe course that tbe most ordinary prudence would have dictated, and carried bis lantern with him to light bis way.

In most respects this case is very much like tbe Fulghum case, above cited, except that tbe evidence of contributory negligence here, according to tbe plaintiff’s own statement, is clearer and stronger than in that case.

Tbe motion for nonsuit was properly sustained.