#### J. L. FULGHUM and Wife, LOU FULGHUM, v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 10 April, 1912.)

1. Carriers of Passengers — Stations — Safety of Passengers — Flag Stations — Duty df Carriers.

A common carrier is not lield to tlie same high degree of care to provide safe means of access to and from its stations for the use of passengers, at a flag station where the passengers alight at a crossing, and where the law does not require them to keep a depot or platform, as it is at a depot in cities and towns.

2. Same — Negligence—Questions of Law.

At a flag station, where the law does not require the carrier to provide depots or platforms at the station, and where the trains are flagged, it is not negligence for the carrier to lay a few cross-ties at intervals along its right of way for the purpose of repairing its track, where they are in plain view of the passengers and not dangerous to a person exercising ordinary care.

3. Carriers of Passengers — Flag Stations — Safe Egress — Contributory Negligence — Evidence.

Where a passenger has safely alighted in -broad daylight at a flag station of the carrier, and is injured by stepping upon a cross-tie left there for the purpose of repairing the track, lying-lengthwise on a slanting ditch along the roadbed, which had plainly become slippery with rain and mud, and it appears from her own testimony that she could have safely stepped over the cross-tie or have gone around it, her contributory negligence in thus acting will bar her recovery. BAnshaw’s case, 118 N. C., 1052, cited and distinguished.

4. Nonsuit — Plaintiff's Evidence — Contributory Negligence — Questions of Law.

Where the plaintiff’s own evidence discloses such contributory negligence as bars her recovery, a motion to nonsuit should be sustained.

CLARK, C. X, dissenting.

*556Appeal from Peebles, J., at September Term, 1911, of JohN-STON.

Tbis is 'a civil action, instituted by tbe plaintiffs to recover damages for personal injury, alleged to have been sustained by tbe feme plaintiff at Bagley, N. C., on 29 January, 1909. At tbe conclusion of tbe evidence introduced by tbe plaintiffs, on motion of defendant’s counsel, there was a judgment of nonsuit. Tbe plaintiffs appealed.

Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Brown.

F. H. Brooks, Aypoclc & Winston for plaintiffs.

Abell ¡& Ward for defendant.

Bkowjst, J.

Tbe defendant offered no evidence, and tbe following is an accurate statement of tbat offered by plaintiff:

Plaintiff was a passenger on defendant’s train on tbe morning of 29 January, 1909, and left tbe train at Bagley, N. C., a flag station at wbicb there was no regular depot, station-house, or platform. Passengers alighted generally in tbe vicinity of tbe public crossing. Tbe conductor helped tbe plaintiff off tbe car, and placed her safely on tbe ground about sixty feet north of tbe crossing, on tbe right side of tbe track going north, from wbicb point she started towards tbe crossing.

There were several cross-ties distributed along tbe right of way for use in repairing tbe road between tbe point where she alighted and tbe crossing. Tbe plaintiff stepped on one of tbe cross-ties, her foot slipped on tbe tie, and threw her ankle out of joint.

Plaintiff testifies she knew tbat tbe tie she stepped upon was “wet, muddy,, and slippery, and one end in tbe ditch and tbe other end towards tbe railroad, and tbe end towards tbe railroad was higher.” Plaintiff says she stepped on tbe tie because she thought it safer to step on it 'than over it. Plaintiff admits she could easily have stepped over it, and further admits tbat she could have walked around tbis cross-tie without stepping on or over it.

The other testimony is tbat of two witnesses introduced by tbe plaintiff, wbicb tends to prove tbat tbe nearest end of tbe *557cross-tie was five or six feet from tbe ear, and that there was ample room for the plaintiff to pass around it.

The defendant offered no evidence, and moved to nonsuit, which motion was granted.

■ Upon a review of these undisputed facts, we conclude that his Honor properly sustained the motion to nonsuit: first, because there is no evidence of negligence; second, because the plaintiff’s own negligence was the immediate cause of her injury.

1. Bagley is a fiag station, having no depot nor station platform of any kind. Passengers are taken on the train in the vicinity of the crossing.

The defendant for purposes of repairing its track had placed a few cross-ties at intervals along its right of way; the exact number does not appear; plaintiff says several, while one of her witnesses says there was only one tie between where she alighted and the crossing.

All the evidence shows there was a space or passway five or six feet wide between the end of the ties nearest the railroad track and the cars. There is nothing in the evidence to indicate that plaintiff could not have walked around the ties with perfect safety.

This occurrence did not happen in a town or city where a regular station is kept, but at a flag station where there was no depot or -platform required by law.

We recognize fully the duty of a common carrier to provide safe means of access to and from its stations for the use of passengers (1 Hutchison on Carriers, sec. 51), but what may be considered a reasonably safe exit under conditions existing at Bagley would not be so regarded in populous towns and cities. '

We are not prepared to hold that it was negligence upon the part of the defendant to lay a few cross-ties under such conditions at intervals along its right of way for the purpose of repairing its track, where they were in plain view of the passengers in broad daylight, and not in the least dangerous to a person exercising ordinary care.

2. It is well settled in this State that where the plaintiff’s own evidence discloses such contributory negligence as bars recovery, a motion to nonsuit should be sustained. We think that is the case here.

*558Tbe plaintiff was assisted from tbe car by tbe conductor and landed in a place of safety only sixty feet from tbe public crossing. It was broad light. Sbe started towards tbe crossing. Sbe admits tbat sbe saw tbe cross-tie before ber. It was in an inclined position, one end elevated some and tbe other in a ditch. Sbe admits tbat sbe saw tbat it was muddy and slippery on top.

Sbe further states tbat sbe could have easily walked around it, or have stepped over it. In fact, a ten-year-old child could have stepj>ed over it. Instead of taking tbe obviously safe course tbat tbe most ordinary prudence would have dictated, and either stepping over or walking around it, tbe plaintiff, with full knowledge of its condition, stepped upon tbe inclined tie, muddy and slippery as sbe knew it to be, and sprained or dislocated ber ankle. As much as we may sympathize with tbe plaintiff in her misfortune, a bare statement of tbe facts is, in our opinion, sufficient to demonstrate tbat it was caused by her thoughtlessness.

Suppose sbe bad been on a station platform, and bad discovered a bole in front of ber in time to avoid it, and bad stepped in it instead of walking around it; or suppose sbe bad seen a grease splotch ahead of ber on tbe platform, and bad deliberately walked through it, instead of stepping across or walking around it, could sbe have recovered damages for consequent injury? It will scarcely be contended tbat sbe could.

This is not a case like Hinshaw's, 118 N. C., 1052 (cited by plaintiff), where a passenger is placed suddenly in a position of danger by tbe carrier’s negligence and required to decide at once what course to pursue. He is not expected to exercise infallible judgment, but only ordinary care, and if be does so, be is not held to tbe consequences of bis act if be makes a mistake.

But tbe plaintiff was not confronted with a sudden danger. Sbe was in a place of absolute safety. Tbe whole situation was open before ber. Sbe saw tbe tie, tbat it was slanting, muddy, and slippery. Sbe admits sbe could have stepped over it, or walked around it. She did neither, but deliberately stepped on it. Sbe must bear the unfortunate consequences of ber carelessness.

*559Tbe case is very much, like tbat of John v. R. R., 133 Ga., 525, where a woman with full knowledge that a strip of pavement along the car track had been torn up, decided to step across the excavation, and in doing so stepped on a paving stone and slipped and fell.'

The Court says:- “The conductor, who was inside the car, had nothing to do with this decision, or the effort to carry it out. When she attempted to step from the car across the opening in the pavement, she placed her foot on a paving stone, or dirt, which gave way, and she was hurt. She took the chance of being able to make the long step successfully, and she failed to do so in safety. Even if the defendant was not altogether faultless, nevertheless, she .cannot recover for the results of her own conduct, with full knowledge and in full view of the situation. Her injury was unfortunate, but she has no right to recover from the defendant. This case is not like those involving concealed danger, or dangerous places known to the com--pany and not to the passengers, or where a passenger was ordered, or forced to leave a car, or where there, was a defect in street or sidewalk, which may have been previously known to a passenger, but of the proximity or danger of which by reason of darkness, or other cause, at the time of the injury, he was not aware.”

We do not deein it necessary or useful to discuss the cases cited in the brief of the learned counsel for plaintiff. None of them bear even a little resemblance to the case at bar, which is peculiar and unusual in the facts presented.

The judgment of the Superior Court is

Affirmed.

Clark, C. J\,

dissenting. When the train stopped at Bagley the feme plaintiff started to the rear door of the coach, which was at or near the crossing, to get out. Had she been permitted to do so she would not have been injured. The conductor called her to come to the front door, which was the length of the car, some sixty feet farther from the crossing. When she got upon the ground there were several cross-ties lying along the roadbed between her and the railroad crossing. It had been raining and *560tbe walkway around tbe end of tbe cross-ties was muddy and slippery and tbe sixty feét tbat sbe was unnecessarily required to walk to reach tbe crossing was in a shallow cut. It was negligence in tbe defendant company to require her to get out at this spot instead of tbe other end of tbe coach, where sbe would have stepped down upon thé crossing. Tbe defendant owed to her a decent and safe landing place, all tbe more so where, this not being a regular station, there was no platform.

Tbe burden was upon tbe defendant under tbe statute to prove contributory negligence. It offered no evidence whatever to tbat effect, and tbe only evidence on tbe point was by tbe plaintiff herself, who said tbat it seemed to her safer to step on tbe cross-ties than on tbe muddy sloping earth in getting back to tbe crossing. It is patent to any one tbat this must have been so. If tbe cross-ties were slanting a little, so was necessarily tbe ground upon which they lay, and tbe ground, being soft and muddy, was much more slippery than tbe cross-ties could have been. If sbe bad fallen by slipping in tbe mud, as sbe doubtless would have done, sbe must have fallen upon tbe cross-ties and been worse hurt., At any rate, tbe plaintiff bad a right both under tbe Constitution and tbe statute to have a jury and not tbe judge to pass on tbe facts.

It was tbe duty of tbe defendant to have given tbe plaintiff a safe place to dismount. It did no t do so, and would not permit her to get off at the other end of tbe coach, where sbe would have been safe. Tbe burden was upon tbe defendant to prove contributory negligence. It did not do so, and tbe only evidence is tbat of tbe plaintiff, tbat sbe pursued tbe safest course in stej)ping upon tbe cross-ties instead of upon the slippery mud.

Tbe plaintiff was still a passenger when sbe fell. Being a woman, sbe was entitled to tbe attention tbat tbe law required to be paid to women and children, who are less able to take care of themselves than men. Morarity v. Traction Co., 154 N. C., 586. Tbe conduct of tbe defendant company in preventing tbe feme plaintiff from getting out in a safe place and causing her to walk sixty feet through mud and slush was of itself actionable.

Certainly, tbe judge bad no right to say as a matter of law *561and in violation of the statute tbat the plaintiff was guilty of contributory negligence because she cbose what seemed to ber and wbat the jury doubtless would have found (if she had been allowed her constitutional right to a jury trial) was the safer method of traversing the sixty feet of the sloping cut.

In Roberts v. R. R., 155 N. C., 84, this Court quotes with approval, as it had previously done in Smith v. R. R., 147 N. C., 450, from Hutchison on Carriers, sec. 128, as follows: “It is the duty of railway companies as carriers of passengers to provide platforms, waiting-rooms, and other reasonable accommodations for such passengers at the stations and at such places at which they are in the habit of taking on and putting off passengers. Their public profession as such carriers is an invitation to the public to enter and alight from their cars at their stations, and it has been held that they must not only provide safe platforms and approaches thereto, but that they are bound to make safe for all persons who may come to such stations in order to become their passengers or who may be put off there by them all portions of their station grounds reasonably near to such platforms and to which such persons may be likely to go; and for not having provided such stational accommodations and safeguards Railway companies have frequently been held liable for injuries to such persons.” And in Mangum's case, 145 N. C., 153, Associate Justice Brown, in delivering the opinion, said: “It seems now to be almost elementary that one of the recognized duties of' a railway company that undertakes to carry passengers is to keep its station premises in a reasonably safe condition, so that those who patronize it may pass safely to and from the ears. Pineus v. R. R., 140 N. C., 450; Wood on Railways, 310, 1341, 1349. This duty extends not only to the condition of the platform itself, whereon passengers walk to and from the trains, but also to the manner in which that platform is allowed by the common carrier to be used. Western v. R. R., 73 N. Y., 935; Wood, supra. The defendant owed a duty to plaintiff, and to all other passengers, to keep its depot platforms used by them as a means of ingress and egress free from obstructions and dangerous instrumentalities, especially at a time *562wben its passengers are hurrying to and from its cars,” citing Pineus v. R. R., 140 N. C., 450, and R. R. v. Johnston, 36 Kansas, 769.

The plaintiff not having left the carrier’s premises, was still a passenger. Hansley v. R. R., 115 N. C., 602. Being still a passenger, she was entitled to a safe exit. 2 White Personal Injuries, sec. 557. If the railroad offers an egress that is unsafe, it is negligence. 2 White Personal Injuries, 619.

“The railroad should so arrange its station grounds that a passenger who gets off a train at the station, or at places provided to alight, may leave the cars without danger, and a reasonably safe passageway or a bridge should be provided leading to and from the station.” Hulbert v. R. R., 40 N. Y., 152. There a passenger who fell in a cattle-guard, going from the car to the station, was injured and recovered damages. “Every spot likely to be visited by passengers departing from depots should be made safe and kept so, and passengers injured may have compensation.” 1 Bishop on Noncontract Law, sec. 1086, quoted with approval, Lucas v. R. R., 119 Ind., 583; s. c., 120 Ind., 206; Gaynor v. R. R., 100 Mass., 215.

The passageway to and from a depot must be kept safe and passengers are entitled to a suitable place of egress. 1 Fetter on Carriers, 112; 2 Hutchison on Carriers, 1060, 1063. The defendant having required the female passenger to get out, not at the crossing, owed it to her to give her a safe, dry path back to the crossing, and if hurt by any defect in getting to the crossing the defendant is liable. Autry v. R. R., 156 N. C., 293.

The defendant was more negligent, not less so, in making the plaintiff get out at an unsafe place, when she could have gotten out at a safe place at the other end of the coach, as she wished to do, because this was a flag station. She has been deprived of a right guaranteed her by the statute and the Constitution in being arbitrarily refused by the judge the opportunity to have twelve men to pass upon the question whether the railroad was guilty of negligence in causing her to get out of the train not at the crossing place. His Honor was further in error in depriving her of the benefit of the statute which placed upon the defendant the burden of proof to show that the plaintiff was *563guilty of contributory negligence and in finding iimself, not only without any evidence whatever, but in contradiction of the only evidence before him, that she was guilty of contributory negligence. She testified that she took the safest course. The presumption under the statute is that she did. Eevisal, 483. This presumption should be reversed only by a jury, as the statute requires.

The conduct of the defendant and the action of the court below are without any precedent to sustain them. All passengers, and especially ladies, are entitled to better treatment than this plaintiff has received. Her ankle was broken because the defendant put her off at an unsuitable place when she could have gotten off at a safe place, and that, too, when it was apparent that for her to get back to the proper point, the road, she would have to traverse a muddy, slippery, sloping bank encumbered with cross-ties. If necessary for her to get out at the front end of the coach, the train should have been run back till she could have landed at a safe spot.

The plaintiff testified that the usual place for putting off passengers at Eagley was at the crossing. That the egress they gave her was not a safe exit is conclusively shown by the fact that in attempting to get back to the crossing her ankle was dislocated, by reason of which she suffered greatly and was laid up two months. Her testimony that she chose the safest plan must be taken as true on a nonsuit. Spruill v. Insurance Co., 120 N. C., 147; Powell v. R. R., 125 N. C., 372, and cases there cited. In Wright v. R. R., 127 N. C., 228, this Court said: “The Court has heretofore had occasion to condemn the growing tendency to take cases from the jury and limit their sphere in damage cases. The right-of trial by jury is guaranteed by the Constitution, and on all disputed issues of fact the courts cannot be too careful to refrain from invading the province of the constitutional triers of fact.”

Hoke, J., concurs in the. dissenting opinion of Chief Justice CLARK.