69 S.E. 230 | S.C. | 1910
November 11, 1910. The opinion of the Court was delivered by Plaintiff recovered judgment against defendant for $300, actual and punitive damages, for failure to carry him to his destination within a reasonable time. The complaint alleged and the testimony tended to show that plaintiff became a passenger on a local freight and passenger train on defendant's road at Fairfax, between 4 and 5 o'clock p. m., February 22, 1909, after telling the conductor that he was anxious to get to his home about two miles in the country from Millett's, a station 21 miles from Fairfax, that night, because his wife was there sick, unprotected and alone, except the presence of some small children, and she was expecting him to return that night, and, if the train would not go to Millett's that night, he would hire a conveyance and drive through the country to his home. Being assured by the conductor that the train would go to Millett's that night he got aboard and paid his fare to Millett's. The train was then several hours behind its schedule time. It arrived at Allendale, five miles from Fairfax, between 6 and 7 o'clock, and, after remaining there about two hours, it was side-tracked, and the conductor informed plaintiff that he had received orders to lie over there until the next morning, and could go no farther. It was then dark and raining. Plaintiff spent the night at a hotel, and was carried to Millett's the next morning *243 on the same train. The defendant denied the allegations of the complaint, and plead, as an excuse for its failure to carry plaintiff to his destination that night, the act of congress (34 Stat. at Large, 1415), which prohibits carriers engaged in interstate traffic (and this train was so engaged) from requiring or permitting any of its employees to remain on duty more than sixteen consecutive hours. The defendant's testimony tended to show that some of the train's crew went on duty that morning at 6 o'clock, and that it would have been impossible to carry the train to any station beyond Allendale, at which it could lie over, within the sixteen hours; and that the delay was due to the fact that the train was a very heavy one and carried that day an unusually large quantity of local freight which had to be handled, and also to the fact that it had to give the right of way to some extra trains passing over the road.
The defendant moved the Court to direct a verdict in its favor, on the ground that it was excused from liability by the act of congress. The Court refused the motion and charged the jury that the act of congress afforded defendant no protection, if the delay was caused by its negligence. In this there was no error. Even what is termed in law an act of God will not excuse a carrier from the liability which the law imposes upon him, unless he shows that the injury could not have been prevented by any foresight, pains or care reasonably to be expected of him. Hartzburg v. Ry.,
During the argument of the motion for direction of the verdict, it occurred to defendant's attorney that he should have proved that defendant's trains are moved by telegraphic orders, and that the telegraph office at the nearest station to Millett's beyond Allendale at which the train could lie over was closed at night. He, therefore, asked and was allowed to prove that fact. But, in responding to the request, the Court said: "I do not think it would affect the case, because, although the law may have prevented this work crew running more than sixteen hours, and it may be that they could not have carried this train through to a station beyond Millett's those circumstances alone would not have excused the defendant from liability in this case, because the defendant could foresee this and should have provided against it, — this delay should have been provided for."
The defendant alleges error in the foregoing remarks of the trial Judge, made in the presence of the jury, as a charge on the facts, especially the last part of them, in which his Honor said, "because the defendant could foresee this and should have provided against it, — this delay should have been provided for."
While the remarks were made in the presence of the jury, they were not made to the jury or in charging the jury, but to counsel in passing upon his request. This Court has recently, in a number of cases, been called upon to consider such remarks made by Judges during the progress of trials, and the general rule announced is that such remarks, made in passing upon the admissibility of evidence or motions for nonsuit or direction of a verdict do not fall within the inhibition of the Constitution against Judges charging juries with respect to matters of fact, and become reversible *245
error, unless they are made in such manner or under such circumstances as to so impress upon the jury the opinion of the Judge as to some vital fact in issue that he thereby becomes a participant in the decision of such fact to the prejudice of appellant. State v. Driggers,
We think, however, that the Court erred in refusing to charge, as requested by defendant, that the plaintiff was not entitled to recover punitive damages. We have stated the testimony most strongly in plaintiff's favor, and we find in it nothing tending to show a reckless or wilful disregard of plaintiff's rights. There is nothing to show that, when plaintiff was accepted as a passenger, the conductor knew, or had reasonable cause to believe, that he would not be able to run his train to Millett's that night, or that he would be ordered to lie over at Allendale. There was no evidence of rudeness or disrespect toward plaintiff. On the contrary, there was evidence that, when he was ordered to lie over at Allendale, the conductor asked by telegraph for permission to carry plaintiff to Millett's, but his request was refused, as he said, because there were some special trains on the road. In Fort v. Ry.,
Judgment reversed.
