67 S.E. 993 | N.C. | 1910
These issues were submitted:
1. Did the defendant wrongfully refuse to stop its train at McFarland to permit the plaintiff to alight therefrom, as alleged in the complaint? Answer: Yes.
2. Was the plaintiff injured through the negligence of the defendant, as alleged in the complaint? Answer: Yes.
3. Did the plaintiff by his own negligence contribute to his injuries? Answer: No.
4. Did the defendant willfully and wantonly refuse to stop its train at McFarland to permit the plaintiff to alight therefrom? Answer: Yes.
5. What damages, if any, is plaintiff entitled to recover? Answer: $2,500.
From the judgment rendered the defendant appealed.
This case was before us at a former term upon a demurrerore tenus to the complaint, and is reported in
The defendant excepted to the submission of the second and fourth issues. Under the allegations of the amended complaint it was proper to submit those issues, as they were clearly raised by the amended pleadings. We have examined the twenty-five assignments of error set out in the record, but do not deem it necessary to discuss them seriatim.
1. The defendant requested the court to instruct the jury that the plaintiff can recover only nominal damages. The court declined, and defendant excepted. The case presented upon the amended pleadings and the evidence is essentially different from that presented upon the demurrer. The evidence tends to prove that the plaintiff had tendered his fare to McFarland, a regular scheduled station on the defendant's road; that he informed the conductor that his child was dead and would be buried that afternoon, and repeatedly begged the conductor to stop there. It is in evidence that the conductor had orders to stop at McFarland and take the siding in case he arrived later than 1:20 p.m.; that the conductor examined his watch when he neared McFarland and said it was 1:22 p. m. Nevertheless, he did not stop, although repeatedly *422 urged by the plaintiff to do so. The plaintiff had a right to have the train stop at McFarland in obedience to orders, and under the unusual and painful circumstances of this case the extraordinary and unfeeling conduct of the conductor is some evidence of a willful, wanton and reckless disregard of the plaintiff's rights, sufficient to be submitted to the jury in connection with the question of punitive damages.
2. It is further contended by the defendant that in any view of the evidence the plaintiff is guilty of such contributory negligence as bars recovery. We are not disposed to relax the just and reasonable rule laid down in the former opinion in this case, and quoted from the opinion inJohnson v. R. R.,
It must be admitted that the temptation to alight from a moving train to reach the body of a beloved child is very great, almost irresistible. Yet that would not have excused the plaintiff. But there are facts and circumstances in evidence that the conductor had not only slowed the train down very much at McFarland, but that he invited and encouraged the plaintiff to jump, and that just as the plaintiff was about to (441) jump with his hand hold of the rail, the train started up more rapidly and threw him to the ground. It is generally recognized that passengers are in many cases excused from the imputation of negligence where they obey the directions or advice of the trainmen, whom the passenger may justly suppose, by reason of their experience, to be better able to judge whether a given act is dangerous than the passenger himself. Thompson on Neg., sec. 2879; Johnson v. R. R.,
Upon a careful review of the whole case we are of opinion that no substantial error was committed, certainly none that warrants another trial.
No error.
Cited: Roberts v. R. R.,
