In this case, the Court below, at the close of the evidence, having intimated an opinion that the plaintiff was not in any aspect of the evidence entitled to recover, the plaintiff excepted and submitted to a nonsuit. We think there was error.
Taking the evidence of the plaintiff as true, and it must be so taken for the purpose of this appeal, there was sufficient evidence to go to the jury as to the negligence of the defendant. Viewed in the light of the same testimony, the action of the plaintiff was not (556) contributory negligence per se. His station having twice been called he went to the front end of the car to get off. The porter opened the door for him, and the plaintiff stepped down to the last step of the car. While the plaintiff was standing there, the porter, who was standing behind him with a light, said "All right, sir." The plaintiff then stepped off and was injured. Under the circumstances the plaintiff had a right to suppose that the remark of the porter was addressed to him, and he was not necessarily negligent in acting upon it. It was dark, and he could not tell whether the train was moving. The porter must have known that the plaintiff was standing there for the purpose of getting off at the proper time, and if the expression "All right" meant anything, it meant that it was right for him to get off. It was not only an implied invitation to get off, but it was equivalent to an assurance that he could safely do so. There was, therefore, no negligence per se, if any at all. Lambeth v. R. R.,66 N.C. 494; Nance v. R. R., 94 N.C. 619; Watkins v. R. R.,116 N.C. 961; Hinshaw v. R. R., 118 N.C. 1047.
We have considered only the plaintiff's evidence, with such of the defendant's evidence as was favorable to the plaintiff, and this is all that could properly have been considered by the Court below, otherwise the Court would have been compelled to pass upon the weight of the evidence, which is exclusively within the province of the jury. Wittkowsky v. Wasson,71 N.C. 451; S. v. Powell, 94 N.C. 965; S. v. Chancy, 110 N.C. 507;Spruill v. Ins. Co., at this term.
For error in the intimation of his Honor a new trial is ordered.
New trial.