43 S.E. 19 | S.C. | 1902
December 2, 1902. The opinion of the Court was delivered by The sole question presented by this appeal is, was the demurrer to the amended complaint herein properly sustained by the Circuit Judge? The amended complaint was as follows (omitting the caption and allegations as to incorporation):
"1. That on the 18th day of April, A.D. 1899, Marion Varn, an infant under the age of twenty-one years, was killed on board of one of the cars of the defendant company under circumstances which will hereinafter be set forth.
"2. That thereafter, to wit: on the 1st day of June, the plaintiff was duly appointed the administratrix of the estate *555 of the said Marion Varn, deceased, and is now such administratrix.
"3. That the plaintiff's intestate at the time of his death left no wife or children or father surviving him, but left a mother, the plaintiff herein, who after the death of intestate's father intermarried with one Elkins, and this action is brought by and in the name of said administratrix for her benefit as mother of said intestate."
The plaintiff further alleges:
"4. That the town of Bamberg is a populous place, having a large cotton mill situated near the centre of the business portion thereof, with a side railroad track running, owned and controlled by the defendant above named, from the main line of defendant company's road to said mill.
"5. That defendant company in constructing their saidswitch or side track constructed it in such a negligent waythat upon the curve it contained a slant, which slant was so great that loaded cars in passing over the same would tiltover to such an extent that the load therein contained would not remain stationary, but was liable to fall and endanger the lives and limbs of those who might happen to be in said car.
"6. That on the 18th day of April, A.D. 1899, the defendant company loaded a box car on said track near said cotton mill with cross-ties for the purpose of shipment and pulled them out to the main line, negligently and carelesslyleft the said box car door open, and allowed the plaintiff's intestate, who was a boy of fourteen years of age and ofweak mind, to ride in said car over the said track and play while it was in progress to its main line.
"7. That plaintiff's intestate had been in the habit of playing in and riding in defendant company's cars from said mill, where he was working, with the full knowledge of the officers and servants in charge of said train (their names being unknown to this plaintiff other than they were the engineerand conductor in charge of said train,) and while riding asaforesaid on the aforesaid day and while passing over said *556 curve, the car tilted, turned or careened to one side, causedby the careless and unskillful construction of said side trackof its said railroad, precipitating said ties upon intestate,causing his instant death.
"8. That the plaintiff had frequently complained to the defendant and requested it not to allow her child (the intestate herein) to play and ride in said car on said side track, the said defendant replying (through the conductor or brakeman in charge of said train, this plaintiff not being able to say which nor does she know their names,) that they didnot care if he (intestate) did ride therein and break his neck.
"9. That the said defendant company was negligent andcareless in leaving said car door open where children aretempted to play and hide; and the plaintiff further charges that at the time of the death of the intestate, the defendant company allowed him to ride in said car over said dangerous track, and the conductor, brakeman and engineer in charge of said train (their names being unknown to the plaintiff) had full knowledge of the intestate's presence in said car,they pulled said train over said dangerous track, precipitatingthe cross-ties on the intestate as aforesaid.
"10. That the plaintiff's intestate was earning from fiftycents to one dollar per day, and by reason of his death, plaintiff has been greatly damaged, and by reason of all the facts herein set forth, she has been damaged ten thousand dollars."
The defendant's demurrer was on these grounds: "That the complaint did not state facts sufficient to constitute a cause of action.
"1. Because there is no sufficient allegation of negligence on the part of the South Carolina and Georgia Railroad Company: a. In that the complaint only alleges that the track mentioned in the complaint was liable to endanger the lives of persons riding in loaded cars which are not intended for the carriage of passengers. b. That it is not the duty of a railroad company to keep its cars closed while in motion over its track, under the circumstances alleged in the complaint. c. In that plaintiff's intestate was a trespasser on *557 the car of defendant, and it is not the duty of the railroad company to guard against trespassers upon its cars. d. In that neither the conductor nor the engineer is alleged to have had authority to permit said intestate to ride in said car, and they are not presumed to have such authority. In that it was not the duty of the defendant to guard its freight cars or trains from persons playing thereon. f. In that the complaint, so far from alleging that the defendant permitted the intestate to ride in the said car, alleges, in effect, that the plaintiff was warned that the intestate was riding thereon at his own risk.
"2. Because the facts as stated in the complaint show that the plaintiff's intestate was guilty of negligence in riding in the loaded freight car of defendant, which negligence was a proximate cause of the injury concurring with negligence of defendant."
As before remarked, the Circuit Judge sustained the demurrer and passed an order dismissing the complaint. From this judgment the plaintiff has appealed upon the following grounds:
"1. Because his Honor erred in sustaining the demurrer and dismissing the complaint, it appearing on the face thereof that the plaintiff's intestate `was a boy of fourteen years of age and of weak mind,' and was allowed `to ride in said car over said track while it was in progress to it's main line.'
"2. That the complaint alleges `that the plaintiff's intestate had been in the habit of playing in and riding in defendant company's cars with full knowledge of the officers and servants in charge of said train;' and it is respectfully submitted that this fact, coupled with the allegation contained in the eighth paragraph of the complaint, in which it is alleged that the plaintiff had warned the defendant against allowing her intestate to ride on said car, alleges negligence in the defendant company, and his Honor erred in not so holding.
"3. It is admitted by the demurrer that the car upon which plaintiff's intestate was killed was a place where children *558 were tempted to play and ride, and coupled with the further allegation that the track over which said car was drawn was dangerous, shows negligence in the defendant, and his Honor erred in not so holding.
"4. That his Honor erred in dismissing the complaint, when it appears upon the face thereof that the intestate was riding on said train with full knowledge of defendant's servants in charge thereof and impliedly by their consent.
"5. That the allegation of the eighth paragraph of the complaint, `that the plaintiff had frequently complained to defendant, and requested it not to allow her child to play and ride in said car on said track,' and the answer of defendant's servants, `that they did not care if he (intestate) did ride therein and break his neck,' shows a wanton and reckless disregard of the safety of the said intestate, who was riding in said car by the implied consent of the defendant, all of which it is respectfully submitted shows negligence, and his Honor erred in dismissing the complaint.
"6. That the allegations of fact contained in the sixth to the ninth paragraphs of the complaint, inclusive, show negligence, and his Honor erred in not so holding."
We have given the matter of this appeal serious reflection. The difficulties which confront us are that by the terms of the complaint viewed under our decisions, the plaintiff's intestate was over fourteen years of age, at which age, under the common law (which has been adopted by this State), he was capax doli. State v. Toney,
Those views are supported by the decisions of many other Courts: Flower v. Penn. R.R. Co., 69 Penn. St.,
Sixth. This ground of appeal cannot be considered, under the well established rule of this Court that each exception by its own terms must contain the point of law involved. Here *562 there is a reference to the 6th, 7th, 8th and 9th articles of the complaint, without any effort to set out in the exception any view or views, or what view or views, presented by such articles the Circuit Judge erred in construing. This exception is overruled.
First. While it did appear on the face of the complaint that the intestate was fourteen years of age and of weak mind, it also appeared there that he was employed in a cotton mill, where he earned from fifty cents to one dollar a day; and also while there was an allegation that the intestate was allowed to ride on said train on the side track from the mill to the main line of the railroad, it also appeared that such train was used to switch cars to the main line and such cars were freight and never passenger cars. This exception cannot be sustained, for the reason that in the complaint it does not appear that the employees who allowed the intestate to ride, had any power to so allow the intestate to ride thereon. This exception is overruled.
Second. Stress seems to be laid upon the allegation that the plaintiff warned the engineer and conductor against allowing her son, the intestate, to ride on and play in their cars. Has a parent of a boy just beyond the age of fourteen years no power to control her son? Has it got to that condition in the matter of discipline, that parents must beg and beseech others to do their duty for them? Stress is laid also upon the reply of the railway employees, "he may ride and break his neck, for all we care." This was nothing more than an indignant method of putting a stop to this mother upbraiding them for her own folly. Virtually telling her, we have not the time to be following your fourteen year old son and keeping him out of mischief. This case shows that there is a desire on the part of some living parents to convert railways into guardians of their children. The law should end such trifling. But suppose this plaintiff did warn these employees of the defendant not to allow her son to ride on a freight car on the side track in question, how is the defendant responsible therefor? It has nothing to do with trespassers stealing *563 rides on its freight cars, except it is alleged that the injury was wrought by the defendant to the intestate wilfully and purposely, "or we may add, where it was the result of such gross negligence as would imply wantonness or recklessness." This exception is overruled.
Third. Now it seems to us that it has come to a wonderful state of things, when the mother of trespassing intestate can complain that a railroad must construct its side track over which its freight cars are passed on to the main line as to avoid all possible danger to such trespasser. There is no such law. Persons whose freight are loaded on cars when goods are injured, or passengers on a passenger car which may run on such a side track and injuries are produced thereby, can properly complain, but not trespassers who may place themselves on either of such trains, respectively. This exception is overruled.
Fourth. Agents can bind by their conduct in the service of a principal only within the scope of their agency. There is no allegation in this complaint that the principal delegated any such power to these their agents. This exception is overruled.
Fifth. We have explained what is the natural and proper inference to be drawn from the language imputed to defendant's servants by the allegations of the complaint. Such language as used by the conductor or engineer was the petulent expression of annoyance felt by them at having the responsibility for this young man thrust upon them by his natural guardian. There is no suggestion that the defendant itself had anything to do with this trespasser. The exception is overruled.
It is the judgment of this Court, that the judgment of the Circuit Court be, and it is hereby, affirmed.
MR. JUSTICE JONES concurs in the result.
MR. JUSTICE GARY dissents. *564