Craig v. Augusta-Aiken Railway Co.

dissenting. This is the second appeal herein, the first being reported in 89 S. C. 161.

For convenience, we reproduce the statement then made by the Court, which was as follows :

“This is an action for actual and punitive damages, alleged to have been sustained by the plaintiff, through the negligence and wantonness of the defendant.

“The complaint alleges that on 22d of September, 1906, the plaintiff became a passenger on the defendant’s car at Augusta, Ga., for the purpose of being-carried to Langley, S. C.; that soon after the car had started, the plaintiff became so incapacitated as to be utterly helpless, and was forcibly ejected and left in a dangerous place by the defendant; that the defendant warned its servants to look out for *59 the plaintiff, while operating its other cars over said track, but that they negligently and wantonly failed to keep a proper lookout for the plaintiff, in consequence of which one of its cars ran over his arm, thereby rendering amputation necessary.

“The defendant denied the allegations of negligence and wantonness, and for a defense alleged:

“ 'That, at the time mentioned in the amended complaint, plaintiff was a passenger on a car of the defendant’s railroad in Aiken county, South Carolina, and being guilty of disorderly conduct, and, drawing a knife and therewith threatening the agents of defendant, and cursing, to the terror, annoyance and vexation of a large number of other passengers on said car, the conductor of said car stopped his train, where such offense was committed, and ejected said plaintiff from said car, using only such force as was necessary to accomplish such removal.’

“The defendant also set up the defense of contributory negligence.”

The jury rendered a verdict in favor of the plaintiff for $500, and the defendant appealed upon exceptions, which will be reported.

The exceptions will be considered in regular order.

First Exception. There are three reasons why so much of the exception cannot be sustained as assigns error on the part of his Honor, the presiding Judge, in charging the jury, that it is not the general duty of a railroad company to keep a lookout for people on its track.

1. Because the language of the presiding Judge, forms only part of a sentence, and when considered in connection with the entire sentence, and the other portions of the charge, it will be seen that it is free from error.

2. Because a similar ruling as applied to the facts of this case, was made upon the former appeal and is res adjudicata. Jones v. Ry., 65 S. C. 410, 43 S. E. 884.

*60 The case of Butler v. Ry., 90 S. C. 273, shows that such was the ruling of this Court, upon the former appeal herein, for it says: “It was held in Craig v. Ry., 89 S. C. 161, that it is the duty of a railway company to keep a lookout for persons and pedestrians on its track at a railway crossing.”

3. Because the defendant recognized this principle, when his fourth request was charged, which began as follows: “The jury is further charged, that while it is the duty of a motorman to exercise ordinary care, to keep a reasonable lookout for persons on the railroad track, on a public crossing, etc.”

The remainder of the charge set out in the exception merely states a well recognized rule of conduct, both in the civil and criminal law. Furthermore, there is nothing in this part of the charge, upon which the assignment of error can be properly predicated.

Second Exception. In the first place, this instruction when considered, as it must be, in connection with the entire charge, is free from error. And, in the second place, even if erroneous, it was not prejudicial.

Third Exception. The exception contains only a portion of plaintiff’s third request, which was charged by tl5e presiding Judge; and when considered in connection with the entire request, it is free from error.

Fourth Exception. The language of the presiding Judge in the exception, is only a part of plaintiff’s fourth request, which was charged with modifications. When it is considered together with the entire request and the modifications, it is free from error.

Fifth Exception. The presiding Judge modified the request, and when the language thereof is considered in connection with the modification arid the general charge, it is free from error.

Sixth Exception. There was á lengthy modification of the request, and when the charge is considered in its entirety there is no error.

*61 Seventh Exception. When the charge as a whole is taken into consideration, it will be seen that the exception cannot be sustained.

Eighth Exception. The appellant has failed to show that even if there was error, it was prejudicial.

Ninth Exception. The appellant has failed to show that even if there was error, it was reversible.

For these reasons I dissent.

The opinion of the Court was delivered by

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 *56 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.

*57 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 *58 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.