#### JOE HALLOW v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 24 March, 1943.)

1. Negligence § 11—

Only where on the face of the complaint itself the contributory negligence of the plaintiff is patent and unquestionable, so as to bar his recovery, will the court allow advantage to be taken thereof by demurrer instead of by answer.

2. Negligence § 19b—

Where the complaint, in an action against a railroad for negligence, alleges that plaintiff entered the train, assisting a passenger, with the permission of the conductor and porter and with their assurance that there was ample time, and before he could get a seat fór his companion the train started, and when he hastened to the platform he found the door closed over the steps and open above, and before he could' return to the ear a sudden jerk or lunge threw him out of the door and as he was falling to the ground, he caught the handbar at the entrance steps and was injured. *Held:*Demurrer *ore tenus,*on the ground that the complaint does not state a cause of action, was properly overruled.

Appeal by defendant from *Burgwyn, Special Judge,*at February Term, 1943, of WayNE.

Civil action to recover damages for alleged negligent injury.

The complaint alleges:

1. That on 6 April, 1942, the plaintiff purchased a ticket for bis daughter and as they were about to enter one of the defendant’s trains at Wilson, N. 0., the plaintiff asked the porter and conductor, who were standing upon the ground, if he would have sufficient time to accompany his daughter upon the train for the purpose of finding her a seat and assisting her with her baggage, and being ■ advised that he might enter the train and that there was ample time for him to do so, he went into the car and attempted to find a seat for his daughter; that only a few minutes elapsed when, to his amazement, he discovered the train was in motion; that the plaintiff thereupon hastened to the platform and found the bottom part which covered the steps closed and the door portion open.

2. That upon this discovery, the plaintiff immediately decided to remain upon the train, but before he could return to the coach those in charge of the operation of the train carelessly and negligently caused said train to make a sudden jerk or lunge, which threw the plaintiff out through the door, and as he was falling to the ground, he caught the handbar at the entrance steps and was injured.

3. That the defendant was negligent in the following particulars:

(a) In closing the platform steps when the defendant’s employees knew that plaintiff expected to alight from the train before it started.

*741(b) In permitting tbe door on tbe platform to remain open while tbe train was in motion.

(c) In causing tbe train to be suddenly and violently jerked, thus throwing tbe plaintiff, who was on tbe platform, out through tbe open door.

Tbe defendant interposed a demurrer *ore tenus*to tbe complaint on tbe ground that it does not state facts sufficient to constitute a cause of action. Demurrer overruled. Defendant appeals, assigning error.

*Langston, Allen & Taylor and Paul B. Edmundson for plaintiff, appellee.*

*Thomas W. Davis, D. H. Bland, and*17. *B. R. Guión for defendant, appellant.*

Stacy, C. J.

Tbe thesis of tbe demurrer is, that plaintiff was con-tributorily negligent in attempting to alight from a moving train, which bars recovery, and that this affirmatively appears from tbe complaint. *Stamey v. R. R.,*208 N. C., 668, 182 S. E., 130; *Ballinger v. Thomas,*195 N. C., 517, 142 S. E., 761; *Morrow v. R. R.,*134 N. C., 92, 46 S. E., 12; *Burgin v. R. R.,*115 N. C., 673, 20 S. E., 473.

We do not so understand tbe allegations of tbe complaint. It is alleged that when tbe plaintiff discovered be could not alight in safety be immediately decided to remain on tbe train. This is what be should have done according to tbe opinion in *Morrow's case, supra.*

Tbe negligence of which tbe plaintiff complains became active and hurtful after be bad decided to return to tbe coach. His injury then resulted, not from an effort on bis part to alight from tbe train while in motion, but from tbe failure of tbe defendant to allow him reasonable time to depart and from tbe jerk which threw him through tbe open door. *Riggs v. R. R.,*188 N. C., 366, 124 S. E., 749. He was on tbe platform as a result of tbe permission and assurance which tbe porter and tbe conductor bad previously given him. He entered tbe train with their knowledge and consent. They knew tbe plaintiff expected to leave tbe train before it started and they bad advised him that be bad ample time to do so. At least, this is what be alleges, and for tbe purpose of tbe demurrer, it is to be taken as true.

Speaking to a similar pleading in *Ramsey v. Furniture Co.,*209 N. C., 165, 183 S. E., 536, where tbe authorities are fully reviewed, *Devin, J.,*writing for tbe Court, s.ays: “So that it must be held that only where on tbe face of tbe complaint itself tbe contributory negligence of tbe plaintiff is patent and unquestionable, so as to bar bis recovery, will tbe court allow advantage to be taken thereof by demurrer instead of by answer, as required by tbe statute.”

*742The plaintiff is entitled to a liberal interpretation of his complaint. C. S., 535. So construed, it appears to be good as against a demurrer.

Affirmed.