Milhous v. Southern Ry.

52 S.E. 41, 72 S.C. 442, 1904 S.C. LEXIS 153

• Court: Supreme Court of South Carolina
• Decided: October 13, 1904
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Gary.

This is an action for damages, which the plaintiff claims he sustained, by reason of facts set out in the complaint, which alleges:

“That on the morning of the 8th day of February, 1904, between 4 and 5 o’clock, the plaintiff, who had arranged to go to Columbia, S. C., on the morning of the said 8th day of February, 1904, to consult with Dr. Taylor, who was to examine and treat plaintiff for an injury to his side, from which injury he was suffering, and having purchased a ticket from Perry station, on said railroad, to> Columbia, S. C., from the station agent of the defendant at Perry, and paid the station agent the fare usually demanded and paid for a ticket from' Perry to Columbia, and as defendant’s passenger train from Savannah tgi Columbia was then due at Perry, the plaintiff, in company with said station agent and others, walked out to defendant’s railroad tracks at a point where the defendant’s railroad trains always stop, for the purpose of allowing its passengers to get off and on its trains, and when the defendant’s passenger train from Savannah to Columbia came in sight, the said station agent directed one Martin N. Price to' signal the train, and the said Price having given the signal pursuant to the direction of the said station agent, the said train slacked up the speed at which it was running and slowed up' to about six miles an hour, when the conductor of said train (who was the agent and servant of the defendant and acting within the scope of his authority as such), with a lantern in his hand came out of one of the cars of said train with the porter thereof to' the lowest step of the platform' of said car, whereupon the said station agent of the defendant called out to' him, ‘I have five passengers for you, or there are five passengers here for you,;’ that it was the duty of the deefndant to stop said train at said Perry station long enough for plaintiff to get on board of it and carry him to Columbia aforesaid, but regardless of its duty in that respect and in utter disregard of the rights of the plaintiff, the conductor of said train, who heard said station agent when he announced that said passengers were awaiting transportation, and who' was the agent and servant of the defendant and acting within the scope of his authority as such, negligently, recklessly, wantonly and wilfully failed and refused to stop' said train for plaintiff to' get on board thereof, and negligently, recklessly, wantonly and wilfully caused the speed of the train to. be increased and to' move off rapidly towards the city of Columbia, so as to make it impossible for plaintiff to get on said train — thus leaving the plaintiff standing on the cold wet ground in the rain at Perry station.

“That by reason of the negligent, reckless, wanton and wilful conduct of the defendant and its agents and servants in failing and refusing to stop said train at Perry station long enough for plaintiff to go on board of it, and in increasing the rate of speed of said train when it was informed that passengers were at said station for the purpose of boarding said train, and as a direct result thereof, plaintiff was insulted, his feelings'injured, he was compelled to. remain at said Perry station several hours in the cold rain before he could board another train for Columbia; he was greatly annoyed, delayed and inconvenienced in reaching Columbia, was delayed from twenty-four to thirty-six hours in Columbia, during all which time he suffered much pain, annoyance and inconvenience, and was subjected to. considerable pecuniary loss and expense, and was greatly inconvenienced and delayed in getting back to his home, and was otherwise greatly injured, to his damage $2,000.”

The answer of the defendant was a general denial.

The jury rendered a verdict in favor of the plaintiff for $500-.

The defendant appealed upon exceptions which will be incorporated in the report of the case.

1 First exception: As the testimony was responsive to the allegations of the complaint, the defendant is not in a position to raise the objection that it was inadmissible, after failing to make a motion to> strike out the said allegations. Martin v. Ry., 70 S. C., 8.

2 Second, third, fourth, fifth and thirteenth exceptions: Section 2134 of the Code of Raws is as follows: “Every railroad company in this State shall cause its trains of cars for passengers to entirely stop upon each arrival at a station, advertised by such company as a station for receiving passengers upon such trains, for a time sufficient to receive and let off passengers.” At the time mentioned in the complaint, Perry was a flag station for the train upon which the plaintiff expected to become a passenger. He had seen a regular time table, advertising the fact that it was a flag station for said train, and his own testimony is to the effect that he had full knowledge of such fact. There is no testimony showing that the regulation making Perry a flag station for said train was unreasonable or oppressive; and as the company did not advertise P'erry as a station for receiving passengers on the train in question, we do not think that the plaintiff under these circumstances, had the right to invoke the provisions of said section. The defendant was only bound to stop its. train- at such a station when duly flagged.

3 Sixth, seventh and eighth exceptions: The failure of an engineer to see a passenger may not only be the result of negligence, but likewise of wilfulness. If he should intentionally fail to see a passenger, punitive damages would be recoverable.

4 Ninth and tenth exceptions: While the requests were refused, the propositions therein stated were substantially charged by the presiding Judge.

5 Eleventh and twelfth exceptions: When there is testimony showing that the inconvenience was the direct and proximate result of negligence or wilfulness, it may be taken into consideration by the jury in awarding damages. Cen. R. & B. Co. v. Strickland, 16 S. E. (Ga.), 352.

6 Fourteenth exception: Conceding that the request contained a sound proposition of law, it was inapplicable to this case, as the complaint alleged that the conductor was acting within the scope of his authority, when he failed or refused to. stop the train at the station. Wilson v. Ry., 51 S. C., 79, 28 S. E., 91.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and the case remanded for a new trial.

The Chief Justice did not participate in this opinion because of illness.