#### DAVIS v. SEABOARD AIR LINE RAILWAY.

(Filed April 7, 1903.)

NEGLIGENCE — Trespasser—Hailraads.

A person who goes upon the train with his family, after giving notice to the conductor thereof, is not a trespasser, and if he is injured in alighting from the train by the negligence of the railroad company, the company is liable.

Action by L. A. Davis against the Seaboard Air Line Railway Company, beard by Judge W. S. O’B. Robinson and a jury, at October Term, 1902, of the Superior Court of UNION County. From a judgment for the plaintiff, the defendant appealed.

Redwine & Stack, for the plaintiff.

Adams & Jerome, and J. D. Shaw, for the defendant.

Montgomery, J.

This action was brought to recover damages against the defendant for personal injuries alleged to have been received by the plaintiff through the negligence of the defendant. According to the plaintiff’s evidence he had seated his wife and children on the defendant’s train, bound for Charlotte, at Marshville, having purchased a ticket for them, and on reaching the bottom step of the coach, with the intention to alight, he was suddenly jerked by a motion of the train from his footing and thrown violently to the ground, whereby he was hurt on the leg. His evidence is that he was jerked from the step and not that he had actually moved from the step. He further said the conductor knew he was going to put his wife and children on the cars and that he asked him to hold the train until he got them on and that he got on as quickly as he Could and turned to go out of the coach as quickly as he could. The defendant offered no evidence and moved to non-suit or to dismiss the plaintiff’s *292action under the statute. We think there was no error in the refusal of his Honor to grant the motion. The case of Whitley v. Railway, 122 N. C., 987 seems to be substantially like this one, and is decisive of this case.

We notice in the assignments of error three to the refusal to give the defendant’s first, second and third prayers for instructions, but the record does not contain any such prayers, nor indeed any prayers for instructions of any kind.

Affirmed.