Opinion
(February Term, 1895).
Action for Damages — Case on Appeal — Delay in Service — Estoppel — Injury to Passenger — Negligence.
1. Where appellant failed to serve his countercase within five days as required by chapter 161, Acts 1889, but the appellant's counsel telegraphed that he would accept service on his return home, which he did, the telegram was an estoppel on appellant, for, but for the telegram, the appellee might have served the countercase within the statutory time by leaving a copy at the residence or office of appellant or his counsel.
2. A passenger who alights from a moving train at the direction of the conductor is not, as a matter of law, guilty of contributory negligence when there was no appearance of danger within the locality where he alighted or in the rate of speed of the train.
ACTION for damages for negligence, tried before Brown, J., (962) and a jury, at December Special Term, 1894, of RICHMOND.
In this Court the defendant moved that the Court adopt its case on appeal instead of the one settled by the judge. (966)
It appears from the affidavit on file that the appellee's case was ready to be served upon the appellant within five days, but the counsel for the appellant being out of town, an agent of the plaintiff wired said counsel to know if he would accept service of the case, and he replied that he would when he saw the papers. When the counsel for the appellant returned to Rockingham he accepted service of the case, and he himself sent the papers to Judge Brown, with the request that he should settle the case, excepting, however, to the failure of the appellee to file his countercase within the statutory time.
Jones Tillett for plaintiff.
MacRae Day for defendant.
The appellee's countercase was not served in the five days required by the amendatory act of 1889, ch. 161. The appellant could therefore insist on his motion that his statement should be taken as the true case on appeal ( Cumming v. Hoffman, 113 N.C. 267) but for the fact that his counsel waived the objection by telegraphing that he would accept service on his return home, which he did. Though the appellant's counsel excepted when he sent the case and countercase to the judge, with request to settle the case on appeal on the ground that the acceptance was after the expiration of the five days, the telegram was an estoppel; for, but for the telegram, the appellee might have served the countercase within the statutory time by leaving a copy at the residence or office of appellant or his counsel. Code, sec. 567 (3); S. v. Price, 110 N.C. 599. The case as settled by the judge must be taken as the case on appeal.
The entire charge of the judge is not presumed to be sent (967) up, but only that part having reference to the exceptions taken. S. v. Cox, 110 N.C. 503. The instruction excepted to is fully sustained by the cases of Lambeth v. R. R., 66 N.C. 494, and Nance v. R. R., 94 N.C. 619. Indeed, this is a Stronger case against the defendant, as there was evidence that the train was moving very slowly and the plaintiff got off the train by direction of the conductor and with care. As the prayer for instruction, which was declined, was "that if the jury believed the evidence the plaintiff could not recover," this evidence, for the purposes of the exception, must be taken as true. Passengers alighting from trains at the direction of the conductor "are justified in assuming the place to be safe, and only under exceptional circumstances will their alighting be contributory negligence." Bishop Non-Contract Law, sec. 1101. In Lambeth's case, supra, the passenger alighted on the platform and was killed. Here, fortunately, he got off on sandy soil and only his leg was broken. The 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's agent, and when it is not obviously dangerous, and approves Lambeth's case. In the present case, there was no appearance of danger, either in the locality itself or in the rate of speed at which the train was moving, which made it contributory negligence to obey the conductor's injunction to "step right off here, old man."
No Error.
Cited: McNeil v. R. R., 117 N.C. 644; Hinshaw v. R. R., 118 N.C. 1053; Hodges v. R. R., 120 N.C. 556; S. v. Ridge, 125 N.C. 657; Darden v. R. R., 144 N.C. 3; Whitfield v. R. R., 147 N.C. 241; Carter v. R. R., 165 N.C. 252.
(968)