dissenting. The plaintiff seeks to recover of defendant damages on account of personal injuries alleged to have been received by the plaintiff through the negligence of defendant. He alleged in his complaint that he boarded defendant’s train at Monroe, as a passenger, intending to go to Indian Trail and paid the conductor in charge his fare; that afterwards it was agreed between him and the conductor, on account of the steep' grade at Indian Trail, that the train would not be stopped at that place, but would be moved beyond to. Matthews, and that the plaintiff could wait at Matthews until the train returned when and where the plaintiff would be taken up. and carried back to Indian Trail; that the conductor told the plaintiff he would slow up at Matthews to a safe speed for him to- alight from the train and that he should get off when it reached the point opposite the express office upon a signal from the conductor; that the train did slow up and signal given “and as he went to alight from the defendant’s train the said defendant, through and by the negligence of its employees and servants, violently and quickly jerked its train forward, and by said negligence and carelessness of defendant’s employees *571and servants the plaintiff was thrown violently upon and against the ground and received great injury herein and afterwards set forth.”
Upon the trial the plaintiff testified to matters supporting his complaint. Amongst other things he said, concerning his purpose to alight at Matthews, “then I saw him (conductor) on the step at the rear end of the car. He motioned to me and told me to get off. I started to step off and the train gave a sudden jerk, threw me to the ground and broke my collar bone. ... I fell because the car gave a sudden jerk as I was on the step. The train was going about the speed of a fast walk.” He said on cross-examination that he had come down to> get off the train before he saw the conductor. The conductor testified that he did not see the plaintiff on the day of the alleged injury, that he was not a -passenger on the train, nor did he collect from him any fare; he said the train was going from ten to fifteen miles an hour as. it passed Matthews. And other witnesses for the defendant, living in Matthews, testified that the speed of the train through Matthews was ten or fifteen miles an hour.
His Honor in his instructions to the jury treated the case not as one where the plaintiff had been jerked violently from the defendant’s train and had been injured by reason of the jerk or wrench, but he treated it as a case in which the plaintiff got off the moving train of his own volition. This will be seen from a reading of two' paragraphs in the charge which were excepted to by the defendant, as follows: “If you shall find as a fact from the evidence and by the greater weight thereof that the plaintiff was a passenger, then you will consider the issue whether he was injured by the negligence of the defendant; and if you should find as a fact from the evidence or by the greater weight thereof that after the plaintiff had paid his fare to> Indian Trail the train run *572past his station, and the conductor promised to slow up at Matthews and let him off and that he would take him up on his return trip and let him off at his station, and that while passing Matthews the train was not moving faster than a fast walk, and the danger not being apparent to a reasonable man, and being told by the conductor, that is, if you should find as a fact from the evidence and by the greater weight thereof that the conductor did motion to him, or tell him to get off, and you further find as a fact from the evidence that the danger was not apparent to a reasonable man, you will respond ‘Yes’ to the first issue.”
“In passing on the second issue as to contributory negligence, the burden is still on the plaintiff to satisfy you by the greater weight* of the evidence that at the time he got off the moving train, the danger was not apparent to a careful, prudent man, and if he has so satisfied you, you will respond ‘No’ to the second issue. If he has failed to so satisfy you, you will respond 'Yes’ and will not consider the issue as to damages.”
Considering the case, then, from the standpoint of the court below, I think there was error in those parts of his charge to which the plaintiff excepted. It is true the jury believed the plaintiff as to the speed of the train in preference to the conductor and the disinterested witnesses of the defendant who lived in Matthews. The plaintiff said the train was going about the speed of a fast walk. The conductor and the other witnesses for the defendant said that its speed was ten or fifteen miles an hour. His Honor instructed the jury that if they should find that the train was not moving faster than a fast walk and the danger not being apparent to a reasonable man, and that if he was told by the conductor, that is, if they should find as a fact from the greater weight of the evidence that the conductor did tell him to get off, they should answer the first issue (as to the de*573fendant’s negligence) “Yes.” In that, we think there was error. The plaintiff’s own testimony showed that he contributed to his own injury. His standing on the bottom step of the train attempting to alight under its speed, as testified to by himself, and being in a position of danger liable to be thrown off by a jerk or wrench of the cars, was in itself contributory negligence and the getting off under the circumstances was unreasonable.