65 S.E. 456 | S.C. | 1909
August 28, 1909. The opinion of the Court was delivered by *415 The action is for damages alleged to have been suffered by the plaintiff from the failure of the defendant to stop its train at Swansea, a station on its road, where the plaintiff had purchased a ticket, and was waiting to take the train to Lexington. The appeal is from an order striking out as irrelevant and redundant the portions of the complaint indicated by brackets.
There is no allegation that the defendant had notice that the plaintiff was ill. Hence there was no basis for the recovery of damages for any increased injury, or suffering, arising from the plaintiff's illness. The cases on the subject are cited in Kolb v. Ry. Co.,
The failure to stop a train at a station implies no personal reflection on persons expecting to board it. There is no allegation that the failure to stop was accompanied by contumely or personal abuse; and injured feelings and insult are certainly not proximate results of a mere failure to stop a train. The Circuit Judge was, therefore, right in striking out the words "was insulted, his feelings injured."
We are of the opinion that there was error in striking out the following allegations: "he was compelled to remain at Swansea in the cold wind for more than an hour and was compelled to procure a private conveyance to carry him to his home at Lexington through the country in the cold wind, during all of which time he suffered much pain, annoyance and inconvenience; he was greatly annoyed, delayed and inconvenienced in reaching Lexington; his illness was very much increased by being exposed to the cold wind in reaching his home at Lexington, and from the annoyance, delay and inconvenience; he was subjected to pecuniary loss and expense and was otherwise greatly injured." In Milhouse v. Ry. Co.,
In Carter v. Ry. Co.,
We think respondent's counsel has well stated the law as established by the cases in this State, in these two propositions:
1. "For failure to stop a train on flag the railroad is responsible to the person desiring to take the train, for injuries that are the direct and immediate consequence of its *417 negligence in failing to stop, but it is not responsible for injuries proximately resulting from the exposure unnecessarily incurred by the prospective passenger, or from his own negligence or reckless conduct.
2. "Although the carrier has been guilty of negligence towards the prospective passenger, when it fails to stop its train on flag for him, nevertheless the passenger is under a duty to use reasonable efforts to minimize his damages, and can not recover for any injuries that might have been avoided by the use of reasonable care and diligence, and by the exercise of proper precautions."
It does not result, however, from the application of these principles that the portion of the complaint under consideration was irrelevant and redundant for the allegation is, that the plaintiff was "compelled to remain at Swansea in the cold wind," etc., and "was compelled to procure a private conveyance to carry him home through the country in the cold wind," etc. This is an allegation that the course taken by the plaintiff and his consequent exposure, etc., was a necessity forced on him by the defendant's breach of duty. Hence as a question of pleading, the allegation should not have been stricken out. If the plaintiff should fail to introduce evidence tending to show that his ride through the country and his exposure to cold was rendered necessary by defendant's failure to stop the train, then his case on that point will fail on the evidence.
It may be that the allegation was indefinite in not setting out facts tending to show that the plaintiff was "compelled" to incur the exposure, and in not indicating the nature of the pecuniary loss, expense and injury and how it was incurred But that question is not involved in the appeal, and on it we express no opinion.
The judgment of this Court is, that the judgment of the Circuit Court be modified in accordance with the views herein expressed. *418