51 S.C. 150 | S.C. | 1897
Lead Opinion
The opinion of the Court was delivered by
The complaint herein alleges: 1. (The corporate existence of the defendant.) 2. “That the plaintiff, on the 13th day of November, 1896, having purchased a ticket, and paid the usual fare therefor, whereby the defendant undertook to carry the plaintiff as passenger from Columbia to Alston, boarded defendant train as it was leaving Columbia for Alston. 3. That the said train moved off toward Alston just after the plaintiff stepped upon the platform of the car, and while standing on the said platform and before he had gone inside of the said car, the plaintiff was approached by the agent and servant of the defendant in a very hostile manner, and commanded by the said servant to alight from the said car, which was then in motion. 4. That in trying to alight from the said car, pursuant to the command of the defendant’s agent and servant as aforesaid, the plaintiff was thrown violently to the ground, whereby one of his arms was broken, and whereby his back was seriously injured, rendering the plaintiff utterly unable to provide for himself and his family; and the plaintiff alleges that the defendant, by its agents and servants as aforesaid, did not observe that care for the plaintiff’s safety which was due to the plaintiff as a passenger on its train, and was unmindful of the consequences which were entailed on the plaintiff as aforesaid, to the damage of the plaintiff in the sum of $1,995.”
The three grounds set forth in this exception, upon which the defendant complains of error on the part of the presiding Judge in refusing the motion for nonsuit, depend, as admitted in the argument of defendant’s attorney, upon the question whether there was any testimony that the relation of passenger and carrier existed between the plaintiff and the defendant. The plaintiff, inter alia, testified as follows: “Q. You bought a return ticket, you say, to Columbia and return? A. Yes, sir. Q. That was fair time, was it? A. Yes, sir. Q. Well, Sam., what happened to you on your return — just give the circumstances, now? A. Well, going down to the cars, the people down there were just as thick as your fingers, you couldn’t hardly get through them. I had my ticket, of course, aiming to get home that morn
For these reasons, I am of the opinion that the judgment of the Circuit Court should be affirmed.
As Mr. Justice Pope and Mr. Justice Jones concur in this opinion, the judgment of the Circuit Court is affirmed.
Dissenting Opinion
dissenting. This action was brought by the plaintiff against the defendant company to recover damages for injuries sustained by him through the alleged negligence of the servants and agents of said company. The negligence alleged in the complaint is that on the 13th of November, 1896, the plaintiff purchased a ticket whereby the defendant undertook to carry the plaintiff as a passenger from Columbia to Alston, and that he boarded defendant’s train as it was leaving Columbia for Alston; that said train moved off towards Alston just after the plaintiff stepped upon the platform of the car, and while standing on said platform, and before he had gone inside of the car, the plaintiff was approached by the agent and servant of the defendant in a very hostile-'manner, and com
To sustain these allegations the plaintiff testified as follows: “Well, going down to the cars, the people down there were just as thick as your fingers; you couldn’t hardly get through them. I had my ticket — of course, aiming to get home that morning — and coming down to the train; I always rides in the second class coach — it is divided, one part in front, of course, was the baggage car,-and the other behind was the second class coach; and the car was just about starting off as I got there — just about in motion to start off— and I stepped on the first place, on the front end of the baggage car, just stepped up on that, and then the car was going on off at that time. Well, going on, of course, the car was gaining speed as it went on, and when the baggage-master saw me, it had went on up a little piece, and when I got to the door going into the baggage car, he saw me, and he come running to me, said, ‘Get off, get off.’ He came towards me with force, and I turned round to jump off. The car had gained speed right smartly, and I jumped off,” and sustained the injuries complained of. In his cross-examination this witness admitted that he did not go into the depot or under the Union shed- to board the train he desired to take, but that he got on the car in Gervais street beyond the shed, supposing it to be the second class car — not noticing that it was the baggage car which he got on. The other witnesses examined on behalf of the plaintiff add nothing material, to that of the plaintiff himself, as to the circumstances under which the accident occurred.
At the close of plaintiff’s testimony, the defendant moved for a nonsuit, substantially upon three grounds: 1st, that there was no evidence tending to show that the relationship of passenger and carrier existed between plaintiff and defendant at the.Time tile- disaster occurred; 2d, that there
So that the next inquiry presented by the motion for a nonsuit is whether the testimony tended to show that there was any negligence on the part of the defendant company in the performance of such duty as it owed to the plaintiff as a trespasser. As is said in Darwin v. Railroad Co., supra, at page 535, while this Court does not go to the extent which some of the cases elsewhere seem to have gone, in holding that a railroad company owes no duty to a trespasser, but, on the contrary, holds that “no one can safely disregard the ordinary instincts of humanity and shield himself from responsibility for an injury done, even to a trespasser, by its wanton or reckless disregard of such instincts;” yet there is no case in this State, so far as I am informed, which defines the measure of duty which a railroad company owes to one who unlawfully intrudes upon its engines or cars; and no such rule or measure is prescribed in Darwin’s case, nor shall I undertake, here, to lay down any such rule or measure. It is enough to say, as was said in Carter v. C. & G. Railroad Co., 19 S. C., 20: “It would, no doubt, require a much stronger case to make out negligence as to a trespasser, than is required in ordinary cases.” Now, the only evidence in this case which even tends to show (if, indeed, that does,) any improper conduct on the part of the defendant company, or any of its servants or agents, was the fact testified to by the plaintiff, that he was ordered by a person in the baggage car, who is assumed to have been the baggage-master, to get off that car while the train was in motion. Even if it be conceded that this single fact would be sufficient to show negligence or improper conduct towards a passenger, I do not think it even tends to show any negligence or improper conduct on the part of
Having reached this conclusion, which necessitates a new trial, it is unnecessary, and would perhaps be improper, to consider the other questions raised by this appeal.
I think the judgment of this Court should be, that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for a new trial.