These issues were submitted:
1. "Was the plaintiff, C. E. Fortune, injured by the negligence of the defendant, as alleged in the complaint?" Answer: "Yes."
2. "Did the plaintiff, Connie E. Fortune, by her own negligence, contribute to her injury, as alleged in the answer?" Answer: "No."
3. "What damage, if any, is plaintiff, Connie E. Fortune, entitled to recover?" Answer: "Three hundred and fifty dollars."
Thereupon his Honor, upon the ground that he had committed an error in not sustaining defendant's motion to nonsuit, set aside the findings of the jury and allowed the motion, from which judgment plaintiff appealed.
In this Court it was agreed by counsel that if the opinion of the Court should be with the plaintiff, judgment should be entered for the sum assessed by the jury. The evidence in this case tends to prove that the plaintiff accompanied her husband to defendant's station at Waynesville for the purpose of seeing him off as a passenger for Asheville. For the purpose of accommodating the increased travel in summer, defendant had daily an extra coach left at a certain place on the side track close to the station at Waynesville, which was attached to the train when it arrived at Waynesville, from the west. It was customary to open this extra coach some ten minutes before train time and to permit passengers to enter it. On the date of the injury the car was standing at the usual place on the side track, where passengers were accustomed to board it. The plaintiff and her husband stepped on the platform of this car, with the view of entering it, about two minutes before train time, but finding the door locked, they were on the point of stepping off, when the collision occurred which caused the plaintiff's injury. They were not on the platform exceeding two minutes. At this time *Page 572 there was a large concourse of persons at the station, waiting for the train. Under these conditions, and just as plaintiff and her husband were about to leave the platform, an engine was run into the side track, at a dangerous rate of speed, variously estimated by the witnesses at from fifteen to thirty miles an hour, and was caused to strike a car standing at the station platform and to drive it against the car upon which plaintiff and her husband were standing, with such force that the ends of the two cars buckled and rose from the track, and the shock threw the plaintiff down and injured her.
The learned counsel for defendant, in his argument before this Court, rested his defense very largely upon the defense of contributory negligence upon the part of the plaintiff in attempting to enter the car. We do not think there is any foundation for such defense upon the facts of the case. The evidence discloses no negligent conduct upon the part of the plaintiff, while on the car, which in the least degree contributed to the injury she received. It will not be contended in this day and generation that it is negligence for a wife to escort her husband to the station and to board a car momentarily to bid him good-bye.
The defense must properly rest upon the theory that the plaintiff was on the car without defendant's consent, and that, being a trespasser, the defendant owed her no duty, except to refrain from willful injury, and therefore as to her is guilty of no negligent conduct. This view of the evidence is properly presented under the first issue.
It is undoubtedly true that if plaintiff had been a trespasser, stealing a ride, as in Bailey v. R. R., 149 N.C. 169, or a huckster (698) entering the train to sell his wares, as in Peterson v. R. R., 143 N.C. 263, she could not recover. But plaintiff was not in any sense a trespasser, and under the circumstances of this case her presence on the car platform was neither wrongful nor negligent. Her presence there was not wrongful, because a wife who escorts a husband, or a husband a wife, to a seat on a railway train is not a mere trespasser to whom the company owes no duty except to abstain from willful injury. It is true, plaintiff was not a passenger towards whom the defendant was bound to exercise the highest degree of care, but she was on its premises by its implied invitation, and it was bound to exercise ordinary care for her safety. Railway companies owe this duty at least to those whom, in practice, they allow to accompany passengers in order to see them off on trains without asking special permission. R. R. v.Lawton, 55 Ark. 428; Packet Co. v. Wilson, 95 Tenn.; 1 Hutchinson on Carriers, sec. 237; Whitley v. R. R., 122 N.C. 987; Morrow v.R. R., 134 N.C. 92; Moore v. R. R., 119 Mich. 613. This implied invitation and consequent duty to those who, impelled by ties of relationship and affection, go to "welcome the coming, or speed the parting, guest," is *Page 573 founded on recognized social observances which have become a universal and inseparable concomitant of modern railway traffic.
Nor do we think the husband and wife were wholly unwarranted in attempting to enter the car at the time and under the circumstances in evidence. The car was an extra coach, brought up every morning from Asheville and left at Waynesville for the afternoon train returning there. It usually remained at the station on the side track at the place the accident occurred. It was the defendant's custom to open the car at that place ten minutes before train time, and passengers for Asheville, at once boarded it and, upon arrival of the train, it was coupled on.
In accordance with this custom, inaugurated and permitted by defendant, plaintiff and her husband boarded the car two minutes before train time in order that he might secure a seat. Finding it locked, they started back to the station, remaining on the car platform in all not more than two minutes, but were caught in the collision. (699) There is no evidence that they lingered on the platform unduly long or did any act that a person of reasonable prudence would not be expected to do under the circumstances. We think his Honor's first impressions of this case were the best.
The cause is remanded, with direction to enter judgment for the damages ($350) assessed by the jury.
Reversed.