Stamey v. Southern Railway Co., 208 N.C. 668 (1935)

Nov. 1, 1935 · Supreme Court of North Carolina
208 N.C. 668


(Filed 1 November, 1935.)

Carriers C d — A passenger on a moving train is not justified in jumping therefrom by the mere fact that he is being carried beyond his station.

Evidence tending to show that plaintiff, a passenger on defendant’s train, attempted to alight from the train while it was still moving after the train had slowed down without coming to a standstill at the station at a flag-stop where plaintiff intended to get off, is held to establish contributory negligence barring plaintiff’s action for damages sustained in a fall when she attempted to alight from the train.

Appeal by plaintiff from Sink, J., at May Term, 1935, of Ieedell.

*669Civil action to recover damages for alleged negligent injury.

On 2? December, 1933, tbe plaintiff and her companions, Enla Moore and Daisy Stamey, were passengers on defendant’s train, going from Statesville to Catawba, a distance of about twelve miles. As tbe train approached Catawba Station, tbe plaintiff and ber companions left tbeir seats and went to tbe end of tbe car preparatory to leaving tbe train when it stopped.

Eula Moore testified for tbe plaintiff, in part, as follows: “I bad made tbe trip lots of times and was familiar with tbe fact that Catawba was a flag-stop. ... As tbe train drew into tbe station yard, and as our coacb was coming under tbe overhead bridge, about 150 feet east of tbe station, I left my seat and walked near tbe door and was standing there waiting for tbe train to come to a dead standstill so we could walk around and go down tbe steps. Tbe train was slowing down kinder as it passed under tbe bridge. . . . Our coacb was about 250 feet west

of tbe station and about fifteen feet beyond tbe end of tbe raised gravel when we got off. ... I got off just like if tbe train was standing-still. Tbe train was moving a tiny bit faster but it was moving along slowly. ... No one was in sight at tbe time we got off, neither tbe conductor, tbe flagman, or any other employee of tbe railroad. . . .

Tbe train did not stop. It was going along slow but never did come to a standstill. We thought we could get off without being hurt, and that is what we did.”

From a judgment of nonsuit entered at tbe close of plaintiff’s evidence, she appeals, assigning errors.

John W. Wallace, Andrew G. Macintosh, Jr., and John R. McLaughlin for plaintiff.

R. O. Kelly, Jach Joyner, and W. G. Feimster for defendant.

Stacy, C. J.

A passenger on a moving train is not justified in jumping therefrom to bis injury by tbe mere fact that be is being carried by or beyond bis station. Carter v. R. R., 165 N. C., 244, 81 S. E., 321. Tbe general rule is, that a passenger who is injured while alighting from a moving train may not recover for such injuries. Burgin v. R. R., 115 N. C., 613, 20 S. E., 413; Browne v. R. R., 108 N. C., 34, 12 S. E., 958.

There are exceptions to this rule, e.g., when invited to do so by tbe carrier’s agent and it is not obviously dangerous; but, according to tbe plaintiff’s own evidence, tbe train bad passed tbe station, without stopping, and was moving “a tiny bit faster” when she and ber companions jumped. Lambeth v. R. R., 66 N. C., 494. This was an act of contributory negligence on ber part which bars recovery. Morrow v. R. R., 134 N. C., 92, 46 S. E., 12; Denny v. R. R., 132 N. C., 340, 43 S. E., *670847; Watkins v. R. R., 116 N. C., 961, 21 S. E., 409. Tbe case is unlike Johnson v. R. R., 130 N. C., 488, 41 S. E., 794, and Nance v. R. R., 94 N. C., 619, cited and relied upon by plaintiff.

We have found nothing upon tbe record to take tbe case out of tbe general rule. Tbe plaintiff thought she could alight in safety. She took a chance and lost.