64 S.E. 390 | S.C. | 1909
April 9, 1909. The opinion of the Court was delivered by Plaintiff recovered judgment against defendant for five hundred dollars for personal injuries alleged to have been sustained by her while a passenger on defendant's train from Spartanburg to Campobello on August 1, 1906.
The plaintiff went to trial upon a complaint in part alleging that defendant's servants, upon arrival of the train at said station, negligently, wilfully and recklessly failed to stop the train long enough for plaintiff to alight in safety, and "negligently, wilfully and recklessly, while plaintiff was endeavoring to get off of said car at said station, moved and caused the same to move rapidly forward and onward, thus causing plaintiff to fall *313 and be thrown violently from said car to the ground." At the close of all the testimony defendant moved to direct a verdict; (1) because there was no evidence of wilfulness to support punitive damages; as the Court directed the jury not to find punitive damages this ground goes out of the case. (2) Because there was no evidence to sustain the cause of action alleged in the complaint. (3) Because the testimony shows conclusively that plaintiff was guilty of contributory negligence in alighting from the moving train. Plaintiff moved to amend the complaint to conform to the facts proved and the Court granted an amendment striking out the words which we have quoted above and inserting in lieu the words: "Defendant negligently started said car from said station before plaintiff had time to alight therefrom, and after defendant started the same and while it was moving slowly plaintiff attempted to alight therefrom and fell violently to the ground from said car, defendant thus causing plaintiff to fall and be thrown violently from said car to the ground."
The testimony for plaintiff tended to show that the train did not stop a sufficient time to permit plaintiff to alight, and that when attempting to do so while the train was slowly moving forward she fell to the ground and was injured.
We do not think that the amendment allowed substantially changed the claim of plaintiff and, therefore, it was expressly permitted by sec. 194 of the Code of Procedure.Booth v. Langley Co.,
Defendant's second and remaining exception contends that the evidence warrants no other inference than that plaintiff negligently contributed to her injury by alighting from a moving train under circumstances making it obviously dangerous to do so.
According to the testimony for plaintiff, the train was moving slowly, not over two miles per hour, and a witness for the defendant testified that the train had not moved more than the length of the car when plaintiff alighted.
The authorities in this State hold that it is not contributory negligence in law for a passenger to alight from a slowly moving train. Cooper v. Railway Co.,
The judgment of the Circuit Court is affirmed. *315