#### JOHNSON v. ATLANTIC AND NORTH CAROLINA RAILROAD.

(Filed June 13, 1902.)

EVIDENCE — Contributory Negligence — Personal Injuries- — Damages —Railroads.

The evidence is sufficient to justify the jury in finding that the plaintiff was not guilty of contributory negligence in stepping from the train while it was moving.

Montgomery, J., dissenting.

ActioN by Richard Johnson against tbe Atlantic and North Carolina Railroad Company, beard by Judge O. R. Allen and a jury, at January Term, 1902, of tbe Superior Court of WayNe County. Erom a judgment for tbe plaintiff, tbe defendant appealed.

F. A. Daniels, and Allen & Dortch, for tbe plaintiff.

W. G. Munroe, and I. F. Dortch, for tbe defendant.

Clark, J.

Tbe defendant, in bis brief, says “the defendant does not deny that there was evidence of negligence, but insists that tbe plaintiff, on bis own showing, was guilty of contributory negligence, and tbe action should have been dismissed,” and that is tbe only point relied on therein. Tbe statute (Laws 1881, Chap. 33) provides that tbe defense of contributory negligence “shall be set up in tbe answer and proved on tbe trial.” Clark’s Code (3d Ed.), page 237. Tbe contention, therefore, that tbe action should be dismissed can *489not be sustained. Neal v. Railroad, 126 N. C., 634, 49 L. R. A., 684, is put upon tbe ground that, taking all tbe plaintiff’s evidence to be true, be bad proved bis own contributory negligence. But sucb is not tbe case bere.

As tbe Court told tbe jury: “Tbe general rule is that a person wbo gets off a train while it is in motion, is guilty of contributory negligence. It is tbe duty of tbe passenger, wben be sees tbe train in motion, to ask for it to be stopped, and if it is not done, be ought not to get off. To this general rule there are some exceptions, one of which is that if a passenger is commanded or invited by tbe conductor to get off while tbe train is in motion, and tbe train is going so slow that tbe danger of stepping, or jumping off is not apparent to a reasonable man, and be does so and is injured, it would not be contributory negligence.”

“If tbe jury find from the evidence that tbe plaintiff alighted from tbe train while it was in motion, and that in.doing sc be passed by tbe conductor on the steps, after asking him to let him pass by, and tbe conductor stood aside for tbe purpose of letting him pass by, knowing at tbe time that be was a passenger and that bis destination was Lagrange, and that be was alighting from tbe train as a passenger, then tbe jury may consider these facts for tbe purpose of determining if tbe conduct of tbe conductor was such as to reasonably lead tbe plaintiff to believe that it was safe for him to alight from tbe train, and for tbe purpose of determining if tbe conduct of ■ tbe conductor was equivalent to an assurance that it was safe to so alight, and an invitation to do so; and if tbe jury find from tbe evidence that tbe conductor, by bis conduct, meant to assure tbe plaintiff that it was safe to alight from tbe train, and they further find that tbe train was moving at sucb a speed that to a reasonable man it was not apparently dangerous, tfiey will answer tbe second issue- ‘No,’ otherwise ‘Yes.’ ’

*490“If the conductor did not mean by his conduct to assure him that it was safe to alight, or if-he did so, and it was apparently unsafe to alight, to1 a reasonable man, it would be a case of contributory negligence.” The Court further told the jury that the burden of proof that the plaintiff stepped from the train on invitation of the conductor was upon the plaintiff. Browne v. Railroad, 109 N. C., 34.

Was there evidence to justify thus leaving the issue of contributory negligence to the jury? There was evidence that the time allowed at the station was too brief to permit plaintiff alighting before the train started, and defendant frankly admits there was evidence of its negligence sufficient to be submitted to the jury. The plaintiff’s testimony is that he had bought a ticket to that station (Lagrange), and the conductor had taken it up; that before reaching there the station was called, and that when the train stopped he left the car as quickly as he could, that the train did not stop at the station as long as usual, and as he was proceeding to alight he found the conductor standing on the steps; that he asked him to let him pass, and the conductor stepped aside in order that be might get off the train. The plaintiff further testified that “the train was moving slowly when I stepped off, and I thought I could step off safely.”

When the plaintiff asked the conductor to let him pass, and the conductor stepped aside in order that he might get off, and did not make any movement to stop the train, this was evidence tending to' show an invitation to alight, a tacit assurance that the plaintiff could do so safely, and if, upon such invitation, the plaintiff did alight, the speed of the train not being such as to put him on guard not to act on such invitation —if the jury believed that state of facts — contributory negligence was not so clearly proved that it could be adjudged that the plaintiff was guilty thereof. On the contrary, there was sufficient evidence to justify the jury in finding that it *491was disproved. Certainly the Court could but leave the issue to the jury. The other exceptions are not pressed in defendant’s brief, and are besides without merit.

No Error.

MONTGOMERY, J., dissents.