The opinion
Brown, J.
We have examined with care each of the exceptions set out in the record, and think they are without merit, but do not deem it necessary to notice them
seriatim.
The argument, as well as brief, of the learned counsel for the defendant was largely devoted to an attempt to show that the recent case of
Shaw v.
Railroad, 143 N. C., 312 , is a controlling authority as to this case. We are of opinion that there is a marked difference between the two.
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In
Shaw’s case
it was not intended to absolve the company from liability for the negligent act of its servant or to overrule the principle laid down in
Hodges v. Railroad,
120 N. C., 555 ;
Cable v. Railroad,
122 N. C., 892 ;
Watkins v. Railroad,
116 N. C., 961 , and similar cases. The Court, not intending to overrule its decisions in the above-cited cases and many others of like- import, was careful to distinguish the
Shaw case
by observing, “nor' did she go out (on the platform) at the invitation of the defendant’s agent,” and further on by adding, “There is no suggestion that the conductor was upon the platform and no evidence that the plaintiff was invited to go there preparatory to leaving the train.”
In- the case at bar the evidence of the plaintiff tended to prove that he boarded the defendant’s mixed train at Scotland Neck for Springhill; that the conductor, when he took up his ticket, told the brakeman to stop at Springhill; that when the train had almost come to a complete stop, the plaintiff got up from his seat preparatory to getting off; that some one called out, “All off for Springhill!” That he went out on the platform and started to get off. The plaintiff further says: “Just as I was in the act of stepping off, one foot on the bottom step and the other ready to put to the ground, the brakeman threw up his lantern (it was dark) and hallooed, ‘All off for Springhill!’ The engineer opened his throttle and the train jerked off. He pulled it suddenly and threw me on the ground. It bruised and sprained my foot and I have been suffering from it ever since.” The plaintiff further testified that throwing up the lantern is a signal for going ahead, and that at the time he undertook to alight, the train had “almost come to a stop.”
It is useless to discuss the alleged negligence of the plaintiff in attempting to alight from a moving train, for, if his evidence is to be believed, the proximate cause of his injury in being thrown to the ground was the premature signaling to the
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engineer by tbe brakeman to “go ahead.” Had it not been for tbe brakeman’s negligence, tbe plaintiff would doubtless have stepped safely to the ground. Tbe brakeman knew that tbe plaintiff was to gqt off at Springhill, for tbe conductor bad told him so. Tbe brakeman bad called out, “All off for Spring-bill!” and was at tbe steps, or near them, and could easily have seen tbe position of tbe plaintiff as be was alighting. Tbe brakeman’s carelessness and baste to “go ahead” was the palpable cause of tbe plaintiff’s fall. It was bis duty to see that bis passenger bad descended from tbe steps to tbe ground before signaling tbe engineer.
Affirmed.