65 S.E. 628 | S.C. | 1909
October 2, 1909. The opinion of the Court was delivered by
The facts in this case are substantially the same as those in Entzminger v. Ry.,
On the call of the cause for trial, defendant's counsel moved to strike the cause from the calendar "on the ground *451 that the complaint does not contain the proper indorsement, in that the nature of the issue and the docket upon which the same should be placed is not indorsed thereon." The exception alleging error in the refusal of this motion can not be considered, for the reason that there is nothing in the record to show that the complaint was not properly indorsed.
The refusal of the Circuit Judge to withdraw from the jury the cause of action for punitive damages, by ordering a nonsuit or directing a verdict, was in accordance with the opinion and judgment of this Court in Entzminger v. Ry.Co., supra, on similar facts, and the point needs no further consideration. It is important to observe, however, that in that case the liability of the defendant for compensatory damages was admitted.
There was no error in refusing to instruct the jury that the recovery must be limited to two dollars, the sum paid by the plaintiff for the conveyance from Govan to Denmark. It is true the plaintiff would not be entitled to recover damages for the suffering resulting from the drive through the country, if by the exercise of due care she could have reached her destination without the exposure.Carter v. Ry. Co.,
The remaining question made by the objections to the testimony, by motion for nonsuit, and by the request to charge, is whether the Pullman company was solely liable for all damages suffered by the plaintiff, to the exemption of the defendant railway company. A railroad company is not relieved of any of the duties which it owes to a passenger by reason of the passenger making a separate contract with a sleeping car company for special accommodations. The sleeping car company may, by its contract, impose upon itself also some of the obligations that the railroad company undertakes in its contract of carriage; but that does not release the railroad company. The only effect of such a contract is to give the passenger the benefit of the care and protection and liability of both companies.
There is, it is true, at least one duty ordinarily undertaken by sleeping car companies, not embraced in the railroad's usual contract of carriage — the duty of providing a sleeping berth. Accordingly, in Taber v. Ry. Co.,
One of the duties embraced in the contract of carriage is to give the passenger reasonable notice of arrival at his destination. Ford v. Southern Railway,
This conclusion disposes of the point under discussion, but there is another view equally conclusive. The plaintiff's case depended mainly not on the mere mistake of having the plaintiff to leave the car at Govan, but on the evidence tending to show a wilful failure to stop the train and allow her to get on again after the discovery of the mistake. As the train was in the control of the agents of the defendant, for any breach of duty in this respect the defendant was liable. For this reason, if there was no other, the motions for a nonsuit and for the direction of a verdict for defendant were properly refused.
There is no foundation for the seventh exception. The Circuit Judge explicitly charged that there could be no recovery for mental suffering unaccompanied by bodily pain or injury. *455
The judgment of this Court is that the judgment of the Circuit Court be affirmed.
MR. JUSTICE HYDRICK was disqualified in this case.