59 S.E. 704 | S.C. | 1907
Lead Opinion
December 14, 1907. The opinion of the Court was delivered by
This action was commenced by the plaintiff in April, 1903, to recover damages for personal injuries sustained in alighting from defendant's train, caused, as alleged, by the negligence of defendant company in the following particulars: 1st, in that the train did not stop long enough to enable plaintiff to accompany his daughter on board and alight therefrom with safety; 2d, that the statutory requirement that the company shall cause all of its trains for passengers to stop for a sufficient time to receive and let off passengers was not observed; and 3d, that the conductor in charge of defendant's train encouraged and invited the plaintiff to alight. On a former appeal this Court overruled the judgment of the Circuit Court sustaining a demurrer by defendant.
The facts are as follows: On December 28, 1902, plaintiff's daughter, a young girl, wishing to go from Mayesville, her home, to Sumter, S.C. plaintiff bought for *564 her a ticket entitling her to passage. The train was due at Mayesville at 9 o'clock p. m., but on the night in question was about an hour late. On its arrival, in order to help his daughter with her baggage and to see her safely on the train, plaintiff got on board and, according to his testimony, passed through the smoker to the door leading into the main body of the passenger coach, where he bade his daughter good-by and at once proceeded to disembark. Before he reached the platform, however, the train had started, and in his endeavor to get off, while it was in motion, he fell or was thrown to the ground, thereby sustaining the injuries complained of. The plaintiff testified the conductor was on the platform and encouraged him to jump. The conductor admitted his position on the platform, but denied that he noticed the plaintiff or in any way encouraged the act. Prior to the trial of the case, defendant gave notice to the plaintiff that a motion would be made before Judge R.O. Purdy to strike out as irrelevant and redundant, or failing in that, to make more definite and certain, the following statements from paragraphs five and six, respectively, of the complaint: "But on the contrary, then and there encouraged the plaintiff to get off said train whilst in motion, whereby the plaintiff received serious personal injuries as aforesaid." "That he was encouraged and invited by the agents and servants of the defendant to get off of the train in the manner aforesaid." The ground for the motion was that these clauses stated a legal conclusion, and the issue formed by its denial could have no connection with it or effect upon the cause of action. The motion was overruled in both particulars and the defendant gave notice of appeal to this Court. The case on its merits was heard at the April, 1906, term of Court of Common Pleas for Sumter County, and resulted in a verdict of five hundred dollars for the plaintiff. Judge Gary, the presiding Judge, having refused a motion for a new trial, the defendant appeals.
The first question that arises is whether or not this Court can consider the appeal from the order of Judge Purdy *565
refusing to strike out the above quoted sections of the complaint as irrelevant and redundant. By reference to section 11, subdivision 2, of the Code of Procedure, it will be seen that while appeal is allowed where the order strikes out any pleading, or part thereof, no provision is made for appeal in case of refusal to strike out. In speaking on this subject, in the case of Harbert v. Railway,
In this case, however, the appellant seems not to urge the alleged error in refusing to strike out, but relies on the ground that the complaint should have been made more *566
definite and certain. The complaint alleged that the conductor "invited and encouraged" plaintiff to jump from the train. We are unable to see where the conclusion of law comes in, or where the allegation is indefinite and uncertain. In a pleading, the facts which are but the logical conclusion from other facts must be stated; and the facts from which they are inferred are but evidence, not to be pleaded. This is the essence of proper pleading. Here the invitation is a fact drawn from words, conduct, etc. Had the plaintiff undertaken to put into his complaint all of the evidentiary facts, such, for instance, as the words and gestures used, the surroundings, the position and bearing of the conductor, he must have gone far beyond the usual and proper mode of pleading. These facts were the evidence to be brought out on the trial of the cause. The invitation was the ultimate, material fact to be proved. The motion of the defendant, therefore, was properly overruled. Bliss on Code Pleading, sec. 210; Pomeroy's Remedies, sec. 526;Shaver v. Grendel Mills,
We proceed now to consider whether or not the Circuit Judge erred in refusing to grant a new trial. While there are a number of alleged errors in the refusal, we think they raise only three questions: 1st. Was there any evidence of negligence on the part of the defendant? 2d. Did the evidence conclusively show the plaintiff guilty of contributory negligence? 3d. Was the verdict capricious and contrary to the weight of the evidence?
A consideration of the first question leads to the inquiry, what was the duty of the defendant to the plaintiff as one assisting a passenger? Clearly he was not a trespasser; yet it is true that the same duty was not due him as to a regular passenger. As was said by the Court in the case of Lawton v. Railway, 29 Am. St., 48, 51: "It is a matter of common knowledge that, in the usual conduct of the passenger business, it often becomes necessary for those not passengers to go upon the cars to assist incoming *567 as well as outgoing passengers, and that a practice has grown up in response to this necessity. While it, perhaps, arose out of a consideration for the security and convenience of the traveler, it has proved beneficial to carriers, and now prevails in this State and extensively elsewhere, and is treated as an incident to the business in the conduct of the public and the acquiescence of carriers. * * * We conclude that such attendant performs a service in the common interest of the carrier and passenger, and that his entry upon a car is upon an implied invitation which entitles him to demand ordinary care of the carrier." In a note to this same case, Mr. Freeman says: "The weight of authority undoubtedly sustains the proposition that a person who resorts to the station or railroad cars of a railroad company for the purpose of assisting an incoming or an outgoing passenger is there under the implied invitation of the company, and is not a trespasser. But unless the company or its employees have notice of his purpose to assist a passenger to a seat only, or his intention to merely assist a passenger to alight from the train, it is not under the same obligation, as to protection, that it owes to the passenger, and it is only bound to exercise ordinary care not to injure him while he is attempting to alight from the train."
Hutchinson in his work on Carriers, section 991, lays down the same rule, and quotes many authorities in support of it. He says: "So one who goes upon a train to render necessary assistance to a passenger, in conformity with a practice approved or acquiesced in by the carrier, has a right to render the needed assistance and leave the train; and the carrier, in permitting him to enter with knowledge of his purpose, is presumed to agree that he may execute it, and is bound to hold the train a reasonable time therefor. * * * Where the carrier's servants have no knowledge, or there are no circumstances tending to put them on notice that a person who has boarded a train to assist another intends to alight before the train starts, they are not bound to hold the *568 train until he has had time to disembark, nor to notify him before the train is started."
Again, in the case of Johnson v. Railway,
From the foregoing authorities it seems clear that the defendant, if it in anyway had notice of the intention with which plaintiff entered its train, owed him the duty of giving him sufficient time to disembark. Of course, if it could not possibly have had such knowledge, it would be unreasonable to hold that such a duty existed. All that the statute requires is that sufficient time be allowed for the passengers to get on and off at the station, and if this is allowed no one has a right to complain. In this case every witness who boarded the train testified that it came to a standstill and that he was seated before it moved off. The question then is, was there any evidence that defendant had notice. Plaintiff's testimony is that as he returned to the platform he found the conductor there and was urged by him to get off. The conductor, himself, testified that he was on the platform. This, together with evidence of the surrounding circumstances, was sufficient to go to the jury on the issue of negligence on the part of the defendant.
The second alleged error in refusing to grant a new trial was that the testimony showed conclusively that plaintiff's injuries were due to his own negligent act in jumping from *569
the moving train. In the case of Cooper v. Railway,
The whole question of negligence and contributory negligence was properly submitted to the jury; and a verdict having been reached, this Court cannot consider whether it is capricious and contrary to the weight of the evidence. Blowers v. R.R.,
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.
December 14, 1907.
Addendum
After a careful consideration of the petition herein, this Court is satisfied that no material matter of fact or issue of law has been overlooked.
It is, therefore, ordered that the petition be dismissed and the order heretofore granted staying the remittitur be revoked. *570
