Lambeth v. North Carolina Rail Road , 66 N.C. 494 ( 1872 )

Dirac, J.

The intestate of the plaintiff was a passenger under the charge of the agents of the defendant, and he was killed in . getting off the train. The policy of the law which is ever solicitous for the protection of human life, requires common-car•riers, who have charge of the safety of passengers to use a high -degree of care to guard against probable injury. As the intestate was a passenger on the train it was the duty of the defendant to transport and place him saiely at his point of destination.

If the injury sustained was caused by a want of proper care on the part of the agents of the defendant in the performance of this duty, it is prima facie responsible in damages to the plaintiff.

The principle defence relied on in the Court below, was that the intestate by his own negligence or misconduct contributed to cause fhe injury sustained. The act of the intestate in jumping off the cars while they were in motion at the rate of from two to four miles per hour, was the proximate cause of the injury, and the question is whether he exercised ordinary care under the circumstances. Ordinary care in this case, is, that degree of care which may have been reasonably expected from a sensible person in the situation of the intestate. He had a right to expect that the defendant had employed a skillful and prudent conductor, who would not expose passengers to dangerous risks, and who had experience and knowledge in his business, sufficient to correctly advise and .^direct passengers as to the proper time and manner of alighting safely from the train.

When the usual signal was given for stopping or slackening the speed of the train, the conductor went with the intestate and Mr. Anthony out on the platform of the car to assist them in getting off safely. If the intestate, without any direction from the conductor, voluntarily incurred daDger by jumping off the train while in motion, the plaintiff is not entitled to recover. If the motion of the train was so slow that the danger of jumping off would not be apparent to a reasonable person, and the intestate acted under the instructions of the manager of the train, then the resulting injury was not caused by contributory negligence or a want of ordinary care. Sherman & Rid on Neg., ch- 15 and 27.

The circumstances attending the injury are given in the testimony of Mr. Atnhony and the conductor, who were both present, witnessed the occurrence and had equal opportunity of knowing the facts. Their testimony was conflicting in material points,and it was the province of the jury to determine the truth of the matter, aud render a verdict in accordance with the instructions of His Honor on the questions of law arising upon the ascertained facts. We think Elis Honor erred in refusing to give the first instructions asked for by the counsel of the plaintiff, for if the testimony of Mr. Anthony is to be believed, there was no such contributory negligence on the part of the intestate as to prevent a recovery in this action. .

Eor this error there must be a venire de novo, and it is not necessary for us to express an opinion as to the rights of the parties, if the jury should find that the testimony of the conductor gives the truth of the transaction.

Let this be certified.

Per CüRtam. Venire de novo.