#### OSCAR WHITFIELD v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 1 April, 1908).

1. Evidence — Opinion—Speed of Train.

The “opinion” of the witness as to the speed of a moving train at the time he was endeavoring to get aboard is competent evidence.

2. Employer and Employee — Respondeat Superior — Employment.

The doctrine of respondeat superior does not apply when the brakeman, not on duty, but being permitted by the conductor to ride to his home on the train, at the request of the conductor goes to the agent at a station for some flowers for him and is injured in boarding the moving train as it left the station.

3. Contributory Negligence — Moving Train — Evidence—Nonsuit.

The contributory negligence of plaintiff in attempting to board a train moving at the rate of fifteen miles an hour will bar his recovery, in the absence of evidence making the case an exception to the general rule, and a judgment as of nonsuit on the evidence, on proper motion, should have been allowed.

Claek, C. J., dissenting, arguendo.

*237ActioN for damages for personal injury, tried before Long, and a jury, at November Term, 1901, of Wayne.

Tbe court submitted these issues:

“1. Was the plaintiff injured by the negligence of the defendant company ?” Answer: “Yes.”

“2. Did the plaintiff by his OAvn negligence contribute to said injuries?” Answer: “No.”

“3. What amount, if any, is the plaintiff entitled to recover of the defendant?” Answer: “Five hundred dollars.”

At the conclusion of the evidence the defendant moved to nonsuit the plaintiff, which motion, was denied, and defendant excepted. From the judgment rendered defendant appealed.

The facts are stated in the opinion of the Court.

17. T. Dortch and J. L. Barham, for plaintiff.

Aycoch & Daniels for defendant.

Ehown, J.

The plaintiff was a brakeman of a freight train, in defendant’s employment. At the time of the injury he was not on duty, but was on his way to his home at Mount Olive from Wilmington. He was traveling on a freight train by permission of the “boss man,” who refused him a pass, but told him to get aboard the freight and go home. Plaintiff was riding on the engine when the train reached Magnolia. The conductor directed him to get off and see the agent and inquire if there was a package of flowers for him. The conductor told plaintiff to get the flowers and then catch the train. The plaintiff testifies further: “I got off and went to agent and told him what Captain Southerland told- me. The agent said there was no package there for Captain Southerland. I went back to get on the train. When I went to get on the train it gave a sudden snatch and threw me right under it. My left leg was cut off a little above the knee and my right forefinger near the upper joint. Do not know how fast the train was running when I tried to get on. I guess it was run-*238ring ten or fifteen miles per hour. I had not been -in the employment of the railroad quite two months at that time.” No other evidence was introduced and the case rests entirely upon plaintiff’s' own version of the facts, and upon these facts we are of opinion that the Judge erred in not sustaining the motion to nonsuit. We place the same construction upon the language of the plaintiff in reference to the speed of the train which his counsel place upon' it in their brief, viz., that he was giving fhis opinion” of the speed at which the train was running at the time he attempted to board it. His opinion was, nevertheless, evidence, for no witness can do more than give an opinion upon such a matter, and it is the only evidence in this case bearing upon it.

We are somewhat at a loss to understand upon what theory of negligence the court below held the defendant liable, but assuming for the sake of the argument that there is evidence of negligence, then upon the unbroken line of precedents the plaintiff, upon his own evidence, is guilty of such contributory negligence as bars recovery. The general rule is that persons who are injured while attempting to get on- or off a moving train cannot recover for any injury they may sustain in so doing. Burgin v. Railroad, 115 N. C., 673. This rule is reiterated by the present Chief Justice in Johnson v. Railroad, 130 N. C., 488, and enforced by Mr. Justice Wallcer in Morrow v. Railroad, 134 N. C., 99, where all our precedents and many others are collected. There may be some few exceptions to the rule, but this case falls within none of them.

In a case very, similar to this the Court, of Appeals of New York says: “In boarding a moving train there is generally less excuse than in alighting from one. The party attempting it is not often under the same stress of circumstances as frequently happens in the former case. He may be compelled to wait for another train, but this is an inconvenience merely, which does not justify exposing himself to hazard.” Hunter *239 v. Railroad, 112 N. Y., 378. See, also, Denny v. Railroad, 132 N. C., 340; Gordon v. Railroad, 132 N. C., 565.

Tbe motion to nonsuit is allowed and tbe action dismissed.

Error.

Clark, O. J.,

dissenting: On tbe motion to nonsuit in this Court there is a double presumption in favor of tbe plaintiff: Eirst, tbe presumption that always exists as to tbe proceedings below that tbe jury and Judge were correct in rendering tbe verdict and judgment in bis favor; and, second, tbe evidence must be taken in its most favorable aspect to tbe plaintiff and with tbe most favorable inferences that can be drawn from it.

Tbe plaintiff testified that be was a brakéman in defendant’s employ; that be was not acting as such this day; that be was refused a pass and was told that he must work bis way borne, and was handling freight on tbe train that day, like other brakemen. When be got to Magnolia tbe conductor told him to get off and see tbe agent there and get a package. He got off the train and saw tbe agent, who said there was no package for tbe conductor. He went back to get on tbe train, and as be went to get on tbe train “it gave a sudden snatch and throwed him right under it.” His left leg was cut off a little above the knee and bis right forefinger near tbe upper joint. He does not know bow fast the train was running. He was laid up two years and is not able to do anything yet. The conductor told him to get the package and get back on the train. It does not appear that tbe train did not come to a full stop. Presumably it did, according to tbe custom of freight trains.

This state of fauts shows that tbe plaintiff was an employee; that, by orders of tbe conductor on the freight train, be got off at tbe station to get a package, with directions to get back on tbe same train; that be obeyed bis orders, and in trying to get back on tbe train and as be did so “it gave a sudden snatch,” and this “threw him right under” the train, by which tbe poor fellow lost bis leg, has been laid up two- years and is still un*240able to do anything. The plaintiff did not come into this great trouble by any voluntary act of his own. The conductor, under whose orders he was working, told him to get off, to get a package and get back on the train. lie did as he was ordered, and he dared not disobey. As he was getting back on the train it gave a “sudden snatch” and he was thrown under it and hurt. It was negligence in the conductor, after having given such order, to start the train off before the plaintiff got back. The “sudden snatch” was also evidence of negligence. As plaintiff was hurt in obeying orders, the court should not nonsuit the case, but submit it to the jury. Mason v. Railroad, 111 N. C., 483.

In all the above there was a plenty of evidence of negligence on the part of the conductor and engineer, and nothing to excuse them. The solitary bit of evidence against the plaintiff is that, after saying he “did not know how fast the train was going,” the poor, ignorant brakesman further said: “I guess it was running ten to fifteen miles an hour.” If the two statements stood on an equal footing it was for the jury to find which was true, and certainly on a motion to nonsuit only that evidence is to be taken which is most favorable to the plaintiff.

But the statements are not of equal value. This Court has often held that, in such matters as the speed of trains, the distance in which they can be stopped, etc., the “jury are at liberty to exercise their own common sense and to use the knowledge acquired by their observation and experience in everyday life in solving the question.” Deans v. Railroad, 107 N. C., 693, quoted and approved; Lloyd v. Railroad, 118 N. C., 1013; Wright v. Railroad, 127 N. C., 227. The jury, applying their common sense, knew that a freight train starting out from a station could not possibly reach a rate of ten or fifteen miles an hour before it cleared the station; they knew that the plaintiff could not catch hold of a train moving at that speed; they knew that a man who “guessed” a speed at *241“ten to fifteen miles” an bonr was not entitled to have his guess considered accurate, with so wide a margin. They did Avhat a sensible, fair-minded jury ought to have done, and found that the other part of his testimony, that he “did not know how fast the train was running,” was the simple truth, and that his subsequent wild guess of “ten to fifteen miles” was, from their own observation of freight trains leaving a station, an impossibility. The jury were at liberty to believe all or a part or none of the witness’ testimony. And, on a motion of this kind, the court must take as true the evidence most favorable'to the plaintiff. If a witness makes inconsistent statements the jury, not the court, must say which is correct. Ward v. Manufacturing Co., 128 N. C., 248.

It is a hard measure to reverse this rule, and, when all the evidence shows the negligence of the conductor or engineer as the cause of the injury save one sentence of an ignorant man, a wild “guess” which is against natural evidence, to- take the latter as true and nonsuit the plaintiff on account of it. The jury found, on the conflicting statements, that the plaintiff “did not know” the speed and that he was not guilty of contributory negligence. How can this Court find that he did know ?

This is not the case of a passenger voluntarily getting off. It is an employee getting back on the train under orders to do so, and if it was running too fast that was the negligence of the conductor, who, having ordered the plaintiff to get back on the train, should have seen to it that the' train was not moving too fast for him to get on. The plaintiff had simple faith that the conductor would do this,. and such “faith should not be counted unto him” as his own negligence. Even where a passenger gets off a moving car with the assent of the conductor, express or implied, it is not negligence. Lambeth v. Railroad, 66 N. C., 495; Nance v. Railroad, 94 N. C., 623; Watkins v. Railroad, 116 N. C., 967; Johnson v. Railroad, 130 N. C., 488. Certainly it cannot be negligence when it is not *242a passenger, but an employee, and be gets on or off because he is ordered-to do so. The plaintiff testified that the “sudden snatch” threw him under the car — not the speed — and the jury find, under his Honor’s charge, that the actual speed was not sufficient to make contributory negligence.

The case was fairly, put to the jury in the following charge: “If you find from the evidence that the plaintiff was on the defendant’s train, in transit to his home, at the time alleged in the complaint, by permission of the conductor in control of the train, and that he was doing certain work, aiding in loading or unloading freight on the trip under the direction of the conductor; and if you find that when the train reached Magnolia the conductor ordered the plaintiff to see the agent at Magnolia, get a package for the conductor and then to board the train, and you find that the plaintiff obeyed' the order of the conductor, inquired for the package, and then undertook to board the ■“train, which was running, and was thrown under the train and had his finger and leg cut off, then the question of negligence of the defendant and of the plaintiff will depend upon how you shall find the other facts to be. If the motion of the train was such as to speed that the danger of getting on the train would not be apparent to a reasonable person, and you find that the plaintiff acted under the instructions of the conductor and undertook to board the train and was injured, then the resulting injury was not caused by the contributory negligence or want of care of the plaintiff. Ordinary care is that degree of care which may have been reasonably expected from a sensible person in the situation of the plaintiff and defendant .at the time. The general rule is that a- person who gets off a train or on a train while in motion is guilty of contributory negligence. If the conductor ordered the plaintiff to board the train, as alleged in the conn plaint, and he undertook to do it; if the train was moving at such speed that to board it was manifestly dangerous and so apparent as to deter a man from boarding the train who used *243ordinary prudence and care, you would in such event answer tbe first issue ‘No’ and tbe second issue ‘Yes.’ On tbe contrary, if plaintiff was ordered to get on tbe train at tbe time and place alleged by tbe complaint, and you find tbat tbe danger of getting on tbe train, moving as it was then found to be moving, was not so apparent as to deter a man of ordinary prudence from doing' so, then you would answer tbe first issue ‘Yes’ and tbe second issue ‘No,’ provided you further find tbat tbe plaintiff was injured as alleged.”

Ilis Plonor further instructed tbe jury “tbat tbe burden of proof is on tbe plaintiff as to tbe first issue and on tbe defendant as to tbe second issue; that is to say, tbe plaintiff must satisfy you by tbe greater weight of evidence that tbe defendant was negligent, or you will answer tbe first issue ‘No’; but tbe burden is upon the defendant to satisfy you by tbe greater weight of tbe evidence/ tbat tbe plaintiff was guilty of contributory negligence, or you will answer tbe second issue ‘No.’ ”

On the evidence, with tbe. aid of tbe lucid and correct statement of tbe law thus laid down by tbe court, tbe jury did not permit tbe wild “guess” of an ignorant man as to tbe speed of a train which be bad just said be “did not know” to overcome all tbe rest of" bis testimony, which clearly convicted tbe conductor of negligence and not tbe plaintiff. And certainly, on appeal, we cannot reject all tbe evidence in favor of plaintiff because of one paragraph tbat is otherwise, and wholly disregard likewise tbe presumption tbat tbe Judge and jury acted correctly.