53 S.E. 297 | N.C. | 1906
This was an action to recover damages for injuries sustained on the platform of defendant's warehouse. From a judgment of nonsuit, the plaintiff appealed. *336 The testimony most favorable to plaintiff tends to prove that he arrived at Sharpsburg on defendant's railroad, with his trunks, which were placed with checks on them in defendant's warehouse by direction of Dawes, defendant's agent, and they remained in custody of defendant while plaintiff was at Sharpsburg, which was from one train to the next (451) southbound train. The warehouse was on defendant's right of way and used by defendant for freight purposes. Defendant's agents testified that passengers' baggage was stored and handled in the warehouse on this platform. Plaintiff's baggage had been previously stored there and he had gotten on and off the train there. Shortly before arrival of next train, defendant's agent sent his clerk with plaintiff to this warehouse for the purpose of rechecking the trunks to Elm City. After rechecking the trunks plaintiff started to take the approaching train. It was at night; there was no light on the platform and it was encumbered with cotton. Plaintiff stepped into a hole in the platform and was injured. Plaintiff had a mileage book good on defendant's road.
If these facts are true, plaintiff was a passenger when injured. He had a right to seek his baggage and recheck it. It matters not whether Sharpsburg was a regular or a flag station, the defendant owed plaintiff the duty to provide a safe platform, especially as plaintiff entered on it at invitation of defendant's agent for a legitimate purpose. Daniel v. R.R.,
It is contended that there is a variance between the allegations of the complaint and the proof. We do not think the alleged variance sufficient to justify a nonsuit. It may be well to amend the complaint, although we do not decide that it is insufficient as it is. The nonsuit is set aside.
New Trial.
Cited: Mangum v. R. R.,
145 N.C. 153 . *337 (452)