{ "id": 8658600, "name": "A. A. CARTER v. SEABOARD AIR LINE RAILROAD COMPANY", "name_abbreviation": "Carter v. Seaboard Air Line Railroad", "decision_date": "1914-04-01", "docket_number": "", "first_page": "244", "last_page": "255", "citations": [ { "type": "official", "cite": "165 N.C. 244" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "160 N. C., 51", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "154 N. C., 262", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "118 N. C., 1015", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654497 ], "opinion_index": 0, "case_paths": [ "/nc/118/1015-01" ] }, { "cite": "105 N. C., 140", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652402 ], "opinion_index": 0, "case_paths": [ "/nc/105/0140-01" ] }, { "cite": "151 N. C., 318", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654709 ], "opinion_index": 0, "case_paths": [ "/nc/151/0318-01" ] }, { "cite": "147 N. C., 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269896 ], "opinion_index": 0, "case_paths": [ "/nc/147/0357-01" ] }, { "cite": "122 N. C., 987", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8663209 ], "opinion_index": 0, "case_paths": [ "/nc/122/0987-01" ] }, { "cite": "147 N. C., 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269422 ], "opinion_index": 0, "case_paths": [ "/nc/147/0236-01" ] }, { "cite": "86 N. C., 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273551 ], "opinion_index": 0, "case_paths": [ "/nc/86/0268-01" ] }, { "cite": "150 N. C., 383", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271193 ], "opinion_index": 0, "case_paths": [ "/nc/150/0383-01" ] }, { "cite": "152 N. C., 621", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272259 ], "opinion_index": 0, "case_paths": [ "/nc/152/0621-01" ] }, { "cite": "163 U. S., 93", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 468263 ], "opinion_index": 0, "case_paths": [ "/us/163/0093-01" ] }, { "cite": "8 Am. Rep., 508", "category": "reporters:state_regional", "reporter": "Am. Rep.", "opinion_index": 0 }, { "cite": "116 N. C., 962", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "118 N. C., 1047", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654531 ], "opinion_index": 0, "case_paths": [ "/nc/118/1047-01" ] }, { "cite": "132 N. C., 340", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659270 ], "opinion_index": 0, "case_paths": [ "/nc/132/0340-01" ] }, { "cite": "134 N. C., 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272606 ], "opinion_index": 0, "case_paths": [ "/nc/134/0092-01" ] }, { "cite": "66 N. C., 495", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "68 Mo., 593", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 455122 ], "opinion_index": 0, "case_paths": [ "/mo/68/0593-01" ] }, { "cite": "54 Wis., 610", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 11285112 ], "opinion_index": 0, "case_paths": [ "/wis/54/0610-01" ] }, { "cite": "41 La. Ann., 795", "category": "reporters:state", "reporter": "La. Ann.", "case_ids": [ 5287169 ], "opinion_index": 0, "case_paths": [ "/la-ann/41/0795-01" ] }, { "cite": "66 N. C., 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277763 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/66/0494-01" ] }, { "cite": "115 N. C., 673", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652720 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/115/0673-01" ] }, { "cite": "108 N. C., 34", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8649655 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/108/0034-01" ] }, { "cite": "130 N. C., 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273900 ], "opinion_index": 0, "case_paths": [ "/nc/130/0488-01" ] }, { "cite": "93 N. C., 258", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273282 ], "opinion_index": 0, "case_paths": [ "/nc/93/0258-01" ] }, { "cite": "96 N. C., 495", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650662 ], "opinion_index": 0, "case_paths": [ "/nc/96/0495-01" ] }, { "cite": "104 N. C., 248", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651139 ], "opinion_index": 0, "case_paths": [ "/nc/104/0248-01" ] } ], "analysis": { "cardinality": 973, "char_count": 26100, "ocr_confidence": 0.466, "pagerank": { "raw": 3.049031575774713e-07, "percentile": 0.8558188141470796 }, "sha256": "195564e3631ab852e486998f53a623ddbfb1d1871515e265b2420104e3a492be", "simhash": "1:a128b47282330371", "word_count": 4779 }, "last_updated": "2023-07-14T20:20:28.606556+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "A. A. CARTER v. SEABOARD AIR LINE RAILROAD COMPANY." ], "opinions": [ { "text": "W\u00e1lkeb, J.,\nafter stating the case: If the judge expressed any opinion as to how long the plaintiff remained on the train, it was in the part of his charge upon the first issue, and as the jury answered that issue in favor of the plaintiff, the error, if any, was thereby cured and became harmless. This is a well settled principle, and is undoubtedly a correct one. Vickers v. Leigh, 104 N. C., 248; Graves v. Trueblood, 96 N. C., 495; Thornburg v. Mastin, 93 N. C., 258; Clark\u2019s Code (3 Ed.), p. 771, note to. section 550, and cases; 3 Womack\u2019s Digest, pp. 18 and 19, where the numerous cases are referred to. Where the jury corrects an error, if one has been committed by the trial court, it is disregarded, because unprejudicial and eliminated by the verdict. Error alone is not sufficient to reverse, but there must be some harm to the party who excepts, by reason thereof; not that he must affirmatively show injury, but if it appears that there is none, his exception fails. 3 Cyc. (title, Appeal and Error), p. 383 et seq. There was evidence by two witnesses, and taken from the record, that the train stopped four minutes, but whether plaintiff had fully this time to perform his act of gentle courtesy and leave the train before it resumed its journey, related to the first issue, as we have shown, and plaintiff won on that part of the case. He has not, therefore, been hurt. '\nThe real question is, Was he guilty of negligence himself when leaving the train? This is to be determined by his conduct at the time. If the train was running at the rate of 10 or 15 miles the hour, and increasing its speed, he was clearly negligent in jumping from it. Such an act was, on its face, a reckless one. But the court, as we think, correctly instructed the jury according to the accepted doctrine of the courts, and of this Court especially, which may be thus stated: Although the passenger, by the refusal of the railway company to stop its train, may be carried beyond his 'destination unless he alights while the train is in motion, he will not be justified in attempting to alight, notwithstanding an invitation to do so by an employee acting in the line of. his duty, if the speed of the train is so great that the danger of alighting is apparent, or if' circumstances exist making the attempt obviously perilous. In such cases, prudence would require him to.submit to the wrong and to seek his redress for it in an action against the carrier, if he should be blamable. A passenger would only be justified in siich attempt to avoid the inconvenience by leaving the vehicle while in motion when the circumstances were such as to induce a person of ordinary prudence and caution to believe that no danger was to be apprehended from such a course. 3 Hutchi-son on Carriers,' sec. 1180 and notes. This accords with our own decisions.\nIn Johnson v. R. R., 130 N. C., 488 (opinion by tbe present Chief Justice), this Court approved a charge not, in substance, unlike that of Judge Peebles in this case. It was held that if tbe carrier\u2019s employee, acting witbin tbe line of bis duty, either by bis words or conduct induces another, who is lawfully on tbe train, to alight therefrom, tbe latter is justified in doing so, provided it would not appear to a man of ordinary prudence dangerous to make tbe attempt at tbe time, and provided further, be otherwise exercised due care in alighting. Said tbe Court: \u201cIf upon such.an invitation tbe plaintiff did alight, tbe speed\u2019 of tbe train not being such as to put him on'guard\u201d not to act on tbe assurance thus given by tbe employee, tbe contributory negligence of plaintiff was not so manifest as to become a matter of law, but was for tbe jury upon tbe 'facts, as they found them to be. This is tbe clear substance of tbe opinion, with some of tbe language of tbe Court.\nThis was tbe view taken by Judge. Peebles in tbe case at bar, and be therefore left it to tbe jury to say, by their verdict, whether tbe invitation to alight, express or implied, was given by tbe porter, and if it was, whether alighting, at tbe time and under tbe circumstances, would have appeared to a man of ordinary prudence obviously dangerous, and if they found tbe danger was so apparent that an ordinarily prudent man would not have taken tbe risk, plaintiff was guilty of contributory negligence in doing so. So be submitted tbe question in two branches: first, was tbe invitation given, and, second, was tbe plaintiff negligent, notwithstanding tbe invitation, in taking an obviously dangerous chance of being injured ? Tbe jury found, either that no invitation was given, or, if it was, that tbe plaintiff bad himself been negligent, as tbe danger was obvious.\nTbe Court held, in Browne v. R. R., 108 N. C., 34 (cited in Johnson\u2019s case, supra), that tbe act of getting on or off a moving train is evidence of contributory negligence, and imposes on one who is injured in doing so tbe burden of proving that tbe peculiar circumstances of tbe case justified him in such course. A common carrier of passengers is under no obligation to delay tbe departure of its trains, or to look after tbe safety of persons wbo attempt to enter them, when they have been stopped long enough to allow passengers to embark and disembark; but it may be liable for injuries suffered by one who, by the invitation or command of persons in charge of the trains, attempts to get on or off while the cars are in motion, provided he does not expose himself to manifest danger.\nBurgin v. R. R., 115 N. C., 673 (opinion by Shepherd, /.), was a case where plaintiff alleged merely that the conductor promised to stop for him to get off at Bound Knob, but failed to do so, and that being, at the time, on his way home and anxious to see his child, who was sick and in a dying condition, he jumped from the train as it was passing the station, and was injured; held, on demurrer, that the complaint was bad, the Court saying: \u201cWe think there can be no question as to the correctness of the ruling sustaining the demurrer. The general rule is that passengers who are injured while attempting to get on or off a moving train cannot recover for the injury. Browne v. R. R., 108 N. C., 34; Hutchison Carriers, sec. 641. In Lambeth v. R. R., 66 N. C., 494, it was said: 'If the intesta\u2019te, without any direction from the conductor, voluntarily incurred danger by jumping off the train while in motion, the plaintiff is not entitled to recover.\u2019 In addition to these authorities, there are a number to be found in other jurisdictions which abundantly sustain the proposition that it is contributory negligence to 'attempt to alight from a moving vehicle, although, in consequence of the refusal of the carrier to stop, the passenger will be taken beyond his destination, unless he is invited to alight by some employee of the carrier whose duty it is to see to the safe egress of the passengers from the conveyance. The mere fact that the train fails to stop, as was its duty, or as the conductor promised to do, does not justify a passenger in leaping off, unless invited to do so by the carrier\u2019s agent, and the attempt was not obviously dangerous,\u2019 \u201d citing Walker v. R. R., 41 La. Ann., 795; Jewell v. R. R., 54 Wis., 610; R. R. v. Morris, 31 Grattan (Va.), 200; Nelson v. R. R., 68 Mo., 593; 2 Wood on Railways, 1133, and adding that there are many other cases to the same effect.\nThere was some evidence in Lambeth v. R. R. (66 N. C., 495), .which, though, was disputed, that plaintiff alighted from a moving train by the invitation or command of the conductor, and the Court said with respect to this phase of the case; \u201cIf the intestate, without any direction from the conductor, voluntarily incurred danger 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,\u201d citing Sh. and Redf. on Negligence, chs. 15 and 21. These authorities have all been since approved by this Court as stating the true principle applicable to such cases. Morrow v. R. R., 134 N. C., 92; Denny v. R. R., 132 N. C., 340; Hinshaw v. R. R., 118 N. C., 1047; Hodges v. R. R., 120 N. C., Watkins v. R. R., 116 N. C., 962.\nWe said in Morrow v. R. R., supra, that \u201cAll of our cases are based upon what was held by this Court in Lambeth v. R. R., 66 N. C., 494 (8 Am. Rep., 508), which has been conceded, for many years, to be the leading and controlling authority with us upon the question.\u201d And in Watkins v. R. R., supra, Justice Ciarle said: \u201cThe case of Burgin v. R. R. (115 N. C., 673) holds that the passenger is not justified in leaping from the train while in motion, unless invited to do so by the carrier\u2019s agent, and when it is not obviously dangerous,\u201d and approves Lambeth\u2019s case.\nThe reason for this being an exception to the general rule, that it is negligence for a person to alight from a moving train, is that the invitation of the conductor, porter, or other employee of the carrier, acting in the course of his duty, to alight, is equivalent to an assurance that it can safely be done at the time and place, and the person may reasonably act upon this' implied assurance, in the absence of any facts or circumstances which obviously show that it is dangerous, so that a man of ordinary prudence would not take the chance of injury thus facing him. It is not only a firmly settled rule, but is also an eminently just and reasonable one, and it bas been adopted in a case of great weight (R. R. v. Egeland, 163 U. S., 93). The court, therefore, properly left the question to the jury, whether the invitation was given, and if so, whether the danger was so obvious that a man of ordinary prudence would not have acted upon the invitation and incurred the risk.\nThe judge did not give the instruction in the language used by counsel in framing it, nor was he required to do so. No rule of practice is better settled than that a judge is not bound to give instructions in the identical words of a request, if the matter or principle embraced therein is correct and amply presented. Annuity Co. v. Forrest, 152 N. C., 621. It is sufficient to comply with the request in substance, with this cautionary limitation, that while the judge is not confined to the exact language of a prayer for instructions, as selected by counsel, and keeps within the law if he gives it substantially and so that the jury may fully understand its meaning, he cannot so alter the phraseology as thereby to weaken its force. Graves v. Jackson, 150 N. C., 383; Rencher v. Wynne, 86 N. C., 268. It may often be proper to change the language so as to enlarge or restrict the scope of the instruction, or to apply correct legal propositions, abstractly stated, to the concrete case presented by the evidence. We think the judge fully complied with this rule, although he departed from the very words of the instruction, as he had the right to do.. He explained to the jury the principle of law as applicable to .the different phases of the evidence, and did it with perfect accuracy. He told the jury that if the porter gave the invitation, and plaintiff was induced or caused thereby to get off at the place where the culvert was, they would answer the second issue \u201cNo,\u201d unless they were satisfied, from all the evidence, that the train was moving at a speed so great as to show plainly to everybody \u2014 a reasonable man \u2014 that it would be dangerous to jump off at that time and place. How could he have expressed it any better or more strongly for the plaintiff? What he added to this instruction surely did not vitiate it. If the train was running at the rate of 10 or 15 miles an hour, it was reckless to jump from it. There could be no two reasonable opinions as to his negligence in such a ease. Burgin v. R. R., supra; Morrow v. R. R., supra; Whitfield v. R. R., 147 N. C., 236, and the other cases already mentioned. Hi\u2019s danger from jumping was not only obvious, but may well be said to have been imminent and inevitable. His escape from it would have been almost miraculous and, at least, providential. There could be no justification for taking any such risk, and the injury would be imputable to his own folly, and he would have himself to blame as the real author of his misfortune.\nThe jury found that he did not receive the invitation from the porter, or that he acted negligently, when he could see the danger for himself and correctly gauge the risk, and this being so, the answer to the second issue was right.\nThe other exceptions become unimportant, in view of what we have said. They relate to the first issue, or were taken to harmless rulings.\nIt is immaterial as to which side of the platform he jumped from; whether he was invited to do so by 'the porter and it was not dangerous, or he was not thus invited, or it was obviously dangerous. In the first view he was not, and in the last he was, guilty of contributory negligence. His own conduct was under review, without regard to the particular part of the steps or platform he used as the locus a quo, and he was given the full benefit of this phase of the case.\nWe have treated the question as if plaintiff was rightfully on the train, with substantially the privileges of a passenger, under Morrow v. R. R., supra, and Whitley v. R. R., 122 N. C., 987; and not as a trespasser, or a mere licensee. But he is subject, also, to the rule applicable to passengers, as laid down in Johnson v. R. R., supra, and the other cases of like tenor, which we heve cited, and which have been approved recently by us in Owens v. R. R., 147 N. C., 357, where the Court, quoting from Johnson v. R. R., says: \u201cIt is the duty of the passenger, who sees the train in motion, to ask for it to be stopped; and if it is not done, he ought not to get off\u201d; and also in Reeves v. R. R., 151 N. C., 318, where it is said: \u201cWe admit the general rule, as well established, that persons injured while attempting to get on or off a moving train cannot recover for any injuries they may sustain,\u201d excepting, however, train bands, brakemen, and the like, under certain circumstances.\nOur first impression of the case was that the judge had not recited the evidence correctly to the jury, but had told them that the plaintiff was directed by the porter to get off at one side of the platform, when he disobeyed, crossed over to the other side, and jumped from the steps. A careful examination of the record convinces us that we misapprehended what the judge did say, as- to this feature of the case, and find that he substantially and fairly followed the course of the evidence throughout, and also cautioned the jury to rely on their own recollection of it.\n\u2022 We do not see the impropriety of the judge stating that the manner in which the plaintiff struck, or fell on, the ground might be considered by them upon the question as to the speed of the train. \u2022 It was a circumstance tending to prove the fact, and, besides, was somewhat in conflict with plaintiff\u2019s statement that the train was moving very slowly.\nA critical review of the record has not disclosed any error committed on the trial of the case. The jury having found that the plaintiff\u2019s negligence contributed to his injury, judgment was properly entered for the defendant. McAdoo v. R. R., 105 N. C., 140; Baker v. R. R., 118 N. C., 1015; Harvell v. Lumber Co., 154 N. C., 262; Hamilton v. Lumber Co., 160 N. C., 51; Sasser v. Lumber Co., ante, 242.\nThe exceptions as to damages are now immaterial.\nNo error.", "type": "majority", "author": "W\u00e1lkeb, J.," } ], "attorneys": [ "8. G. Daniels and J. II. Kerr for plaintiff.", "Murray Allen for defendant." ], "corrections": "", "head_matter": "A. A. CARTER v. SEABOARD AIR LINE RAILROAD COMPANY.\n(Filed 1 April, 1914.)\n1. Appeal and fr.ror\u2014 Trial \u2014 Instructions\u2014Verdict\u2014Harmless Error.\nEyror in the charge of the judge upon an issue answered in appellant\u2019s favor is cured by the verdict, and is harmless.\n2. Carriers of Passengers \u2014 Alighting from Moving Train \u2014 Invitation \u2014Contributory Negligence.\nA passenger upon a moving railway train is not justified in jumping therefrom to his injury by the mere fact that he' is being carried away from his station; though' he may recover for the consequent damages he has sustained if his act was upon the iriducement or suggestion of an employee of the train, acting within the scope of his duties, when the circumstances are such that a person of ordinary care and caution would apprehend no danger in doing so, arid provided he otherwise exercised - due care in alighting. When the evidence is conflicting, the question is one for the jury.\n3. Same \u2014 Trials\u2014Evidence\u2014Verdict\u2014Judgments.\nWhere-a passenger on a railway train has been injured by jumping therefrom while the train is in motion, and the evidence in his action to recover damages is conflicting as to whether he did so upon the inducement or invitation of the porter thereon, or whether the train was moving at such speed that a person of ordinary prudence and caution would, notwithstanding, have- not done so, and under proper instructions the jury have answered the issue of contributory negligence in the defendant\u2019s favor, it is -established by the verdict\u2019that the plaintiff was negligent in either one or the other of the views presented, and a judgment denying recovery is properly rendered, though the first issue, as to defendant\u2019s negligence, has been found in plaintiff\u2019s favor.\n4. Instructions \u2014 Prayers Substantially Given \u2014 Appeal and Error.\nIt is not error for the trial judge to give, in his own language, a requested prayer for instruction, if he substantially gives, it without weakening its force.\n5. Carriers of Passengers \u2014 A.lighting from Moving Train \u2014 Contributory Negligence \u2014 Trials\u2014Evidence.\nIt is contributory negligence for a passenger to attempt to alight from a railway train running 10 to 15 miles an hour, notwithstanding he was told to do so .by an employee in charge of the train; and in this ease it is further held that the manner in which the plaintiff struck the ground and was injured was some evidence as to the speed of the train, and it was not improper for the court to so state in the charge.\nAppeal by plaintiff \u2022 from Peebles, J., at September Term, 1913, of Warrest.\nAction to recover damages for personal injuries alleged to bave been caused by defendant\u2019s negligence, in that plaintiff alighted from a moving train under direction from the porter, and when it was not apparently dangerous to alight. The jury found, upon the issues submitted to them, that defendant was negligent and plaintiff was guilty of contributory negligence.\nThe court charged the jury, on the first issue, that if plaintiff went upon the train, with the knowledge of the conductor, to assist Mr. W. J. Clark in helping his blind wife to get into the coach, and in procuring a seat for her, and he was not allowed reasonable time to do so before the train started again, they should answer1 the first issue \u201cYes\u201d; but that plaintiff had no right to stay on the train longer than was reasonably necessary for that purpose, and if he did so, the fault was his, and not the defendant\u2019s. . He then stated that one witness, a railroad employee, had testified that the train stopped four minutes at Lit-tleton, where plaintiff was hurt, but directed the jury after-wards to be guided by their own recollection of the testimony, and not by his, if he had stated it incorrectly.\nPlaintiff testified that, at Mr. Clark\u2019s request, he assisted Mrs. Clark, who was blind, and the train started before he could get her a seat. When they had gone as far as the middle of the car, he saw that the traiq. was moving. He left Mrs. Carter standing in the aisle with her husband, and started back to the platform. The aisle and platform were crowded, and the porter said to him: \u201cYou can get right off here\u201d (designating the place with his hand), and he then alighted and thought it was safe, as the train was moving slowly \u2014 just moving along. After he stepped off, he struck a pile of ro.ck at the end of a culvert and stumbled over-it and fell 5 or 6 feet into a ditch, and was bruised and scarred, and his clothes were torn.\nOne of plaintiffs witnesses, J\\ PI. Harvey, testified that as he started to jump, he looked back towards the train and towards him, with his right foot forward, and when he jumped he struck the ground about 5 feet this side of the culvert and fell over it \u201cabout as far as from here to the table\u201d \u2014 -about 6 or 8 feet \u2014 the top of the culvert being 4 feet higher than the place where he fell. It had been there a long time.\nThe witnesses differed as to its distance from the station, one saying 100 feet and another as much as 280 or 290 feet. .\nThe conductor and porter testified in contradiction of plaintiff, both saying they were in another part of the train and did not see him, and did not know he was on board, and the porter that he did not show him the place from which he could alight; that he was at the rear end of the train.\nThere was evidence corroborating plaintiff as to the porter seeing him when he alighted from the train, and also evidence that he was \u201cfull of liquor\u201d on Sunday before the Easter Monday (8 April, 1912) when he was hurt. He got three packages of liquor from the express office on Saturday before, but those who assisted him after he fell stated that there was no indication, at that time, that he had been drinking.\nThere also was evidence that plaintiff had stated that it was his own fault, and he did not blame the company; that he did not notify the conductor, and there was no employee there when he jumped.\nOne witness for defendant, L. E. Shearin, plaintiff\u2019s business partner, testified: \u201cWhile I was carrying Mr. Carter home I asked him how he got hurt, and he said Mr. Clark asked him to help get his wife on the train, and when he got on the train he started back out of the car; that there was a crowd in the aisle and delayed him when he got to the door; that the train started off and he did not think it was running fast enough to hinder him from getting off, and it 'threw him. He did not say anything about seeing the conductor there, or the porter. He said if he had been attending to his business, he would not have gotten hurt; that he had no business on the train.\u201d Others of defendant\u2019s witnesses testified that he did not mention the conductor or the porter in speaking to them about the accident.\nThe jury, under the evidence and instructions of the court, answered the first issue, as to negligence, \u201cYes.\u201d\nUpon the second issue plaintiff requested the following instruction : \u201cIf the jury find from the evidence that the plaintiff, not being a trespasser upon the defendant\u2019s train, and while in the act of alighting from the same, was induced by the words or the acts of the porter to get off the said train while the same was in motion, and that the train, was going slow, and was so slow that the danger of stepping or jumping off was not apparent to a reasonable man, and he did so and was injured, it would not be contributory negligence, and you will answer the second issue No.\u201d\nThis instruction was not given, except as it is covered by the charge upon the second issue, which was as follows:\n\u201c1. Did the plaintiff by his own negligence contribute to his injury? The plaintiff admits that he jumped off the train while it was moving. I think -he said, or one witness said, he fell as far as from the chair to the table; if he moved out and off the train while it was moving, then he was guilty of contributory negligence, and you should answer the second issue \u2018Yes,\u2019 unless you are satisfied that the porter caused him to jump off. (He did not say that the porter caused him to jump off; he said that he started off at the end where he got on, and found that the aisle was full, and that he turned and went to the other end of the coach and found some people- on the steps and found difficulty in getting down there, and some one with a uniform on like a railroad porter said, \u2018Here is a place you can get off\u2019; he then turned and got off on the other side.)\n\u201c2. If he was induced to get off there by the porter, that the porter caused him to d\u00f3 it, you will answer that issue \u2018No,\u2019 unless you are satisfied from all the evidence that the train was running at a speed so great as to show plainly to everybody, a reasonable man, that it would be dangerous to jump off at that place. (If the train was going at the rate of 15 or even 10 miles an hour, it was his duty not to notice -anything the porter said to him at all, because it would- be evident that it would be dangerous to get off. One of the witnesses said it was slow \u2014 so slow that he thought he could get off. Some of the witnesses said it was running 15 miles an hour. Whenever you come to consider the speed that it was running, you may take into consideration what the plaintiff said, what that witness said, and what the plaintiff said about his falling about as far as from the chair to the table. You may take that evidence into consideration when you come to consider how fast the train was moving.)\n\u201c3. If I get the evidence wrong, you must be guided by your recollection and not by mine; after all, you are the sole' judges of what they say. And now, if the porter did tell him to get off, and he was negligent in getting off, you will answer the second issue \u2018Yes.\u2019 (When any man gets off a moving train, 'it is his business to look ahead, and see where he is going to land, to see whether there is any obstacle there to increase the danger of getting off; and if he could, by the exercise of ordinary care, have seen the culvert was there and it was dangerous to jump off near it, he was guilty of contributory negligence in getting off at that particular point.)\u201d\nPlaintiff excepted to the part of the charge in parentheses. The jury answered the second issue, as to contributory negligence, in the affirmative. Judgment was entered for the defendant, and plaintiff, thereupon, appealed.\n8. G. Daniels and J. II. Kerr for plaintiff.\nMurray Allen for defendant." }, "file_name": "0244-01", "first_page_order": 292, "last_page_order": 303 }