Craig v. Augusta-Aiken Railway Co.

76 S.E. 21, 93 S.C. 49, 1912 S.C. LEXIS 292

• Court: Supreme Court of South Carolina
• Decided: October 26, 1912
• Docket: 8347
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Woods.

The pleadings and issues involved in this cause are set out in the opinion of the Chief Justice in the former appeal, 89 S. C. 161. It is enough to say here that plaintiff became a passenger on defendant’s car at Augusta intending to get off at Langley, that on account of his drunkenness and outrageous behavior defendant’s agents ejected him from the car, and that sometime after-wards he was run over and injured by another car going in the opposite direction. The allegations upon which plaintiff based his charge of actionable negligence and wilfulness were: (1) Shoving the plaintiff from the car with great violence; (2) Leaving the plaintiff in a helpless condition on or so near the track that defendant’s servants knew or should have known that he was in great danger of being run over by other cars: (3) The failure of the servants of defendant in charge of the car which ran over plaintiff to keep a sufficiently vigilant lookout after they had been warned that he might be on the track. The defenses were: (1) A general denial of the acts of negligence and wilfulness charged in the complaint; (2) The allegation that the plaintiff as a passenger so threatened the agents of the defendant with a knife and used such profanity and behaved so violently to the terror and vexation of the other passengers that the agents of the defendant ejected him, using only such force as was necessary: (3) Negligence of the plaintiff in lying down on the track in an intoxicated condition as the sole cause of his injury; (4)'Contributory negligence in lying down on the' track while intoxicated. On the trial of the issues thus made, .the jury found a verdict against the defendant for $500.

The exceptions assign numerous errors in the charge to the jury. The requests were numerous and intricate — so numerous and intricate that possibly they seem to the jury to obscure rather than elucidate the issues.

1 There was error in charging that it is the duty of persons in control of a car, when they discern a person on the track, “to use the highest degree of care, to- use -every available means in their power to stop the car to prevent the taking of human life, if they can.do so without endangering other passengers on their car.” Due care, not the highest degree of care, is required under such circumstances. Sentell v. So. Ry., 70 S. C. 183, 49 S. E. 215. Whether due care requires the doing of everything short of injuring the passengers to prevent injury to the person on the track depends upon the circumstances and is a question of fact for the jury.

It is true, as urged by defendant’s counsel, that it is for the jury to say what due care requires of a motorman who has notice “that a person might.be expected to be on the crossing,” but it is so clearly his duty under such circumstances to look out for such person that the charge to that effect cannot be regarded prejudicial error.

2 As a matter of law, it cannot be said that photographs and diagrams pf the place of the accident were not admissible and could not be considered because there had been changes since they were taken. If the changes were not so great as to make the photographs and diagrams entirely misleading, they could be properly introduced, allowance being made for the changes. The exception on this point is not well taken.

The measure of damages and the items to be considered in estimating them were stated by the Circuit Judge in accordance with the law as laid down in numerous cases.

3 There was no evidence of the wealth of the defendant,

therefore the charge that it might be taken into consideration in awarding punitive damages was erroneous. But the error could not be material since it is very clear that the verdict for $500, for the loss of an arm, did not include punitive damages.

4 There was prejudicial error in the ninth request to charge which was given to the jury, especially that part italicized below, in that it specifically directed the jury that if a particular act of omission — the failure to keep a loolcout — was the main or proximate cause of the injury, without which it would not have happened, the plaintiff could, nevertheless, recover, although it should be found that the plaintiff’s being on the track in a helpless, drunken condition was negligence on his part. “That it is true a drunken person could not be run over by a car unless he were on the track, yet the fact alone that a person is on a railway track at a public crossing in a drunken and helpless condition, need not necessarily be contributory negligence, nor will it necessarily defeat him from recovering damages for his injuries, for if that were the law, then no drunken person on a railroad track could ever recover damages; in such cases the lazo does not bar the person from damages even though his presence on the railway track in a helpless, drunken condition may be due to negligence on his part, for if the jury believe from the evidence that notwithstanding such person’s condition, the defendant’s motorman could have avoided the injury by keeping a reasonable lookout ahead on the track, but failed to do so, then if such failure to perform his duty formed the main or proximate cause of the injury, zmthout which it could not have happened, you should find a verdict in favor of the plaintiff.” It is true that the Circuit Judge in charging this request and in other portions of the charge stated the general law of contributory negligence; but that by no means cured the error of selecting a particular alleged omission of the defendant in failing to keep a lookout, and saying to the jury that if the defendant was negligent in that particular, and that was the proximate or main cause of the injury, the plaintiff could recover, although they should find to be negligent a particular act of the plaintiff — being drunk and helpless on the track. Even if the defendant was negligent in not keeping a proper lookout, the plaintiff could not recover if his being on the railroad track in a drunk and helpless condition was a proximate cause of his injury and was due to his own negligence. The error of charging to the contrary was manifestly highly prejudicial. The other points discussed in the argument do not require particular discussion since the views of the members of the Court have been recently stated in the cases of Carter v. Ry. and Wilson v. Ry.

I think the judgment should be reversed.

Mr. Justice Hydrick concurs. Mr. Justice Eraser concurs in the result. Mr. Justice Watts disqualified.