Supreme Court of South Carolina, 1915

Jernigan v. Atlantic Coast Line R. R.

Supreme Court of South Carolina · Decided September 11, 1915 · Chiee, Gary, Messrs, Hydrick, Watts, Fraser, Gage

86 S.E. 198; 102 S.C. 62; 1915 S.C. LEXIS 181 (South Eastern Reporter)

Counsel

Mr. Henry E. Davis , for appellant, submits: Testimony as to custom with regard to stops at station irrelevant: 93 S.C. 125 . Requested charge thereon: 82 S.C. 463 ; Code, sec. 3225; 67 S.C. 61 ; 69 S.C. 445 ; 87 S.C. 375 ; 18 R.R. Reports [41 A. E. Ry. Cas. (N.S.)] 320; 25 S.C. 30 . Charge on test of decedent's negligence . It is the law, not only of this Court, but in every reputable jurisdiction where the common law prevails, that a passenger who is afforded a seat in a car (which is the case here, even if it be conceded that this man was a passenger), must stay in the place provided for him by the carrier, and has absolutely no business on an open platform of the train while it is in motion between stations. We do not contend that it is negligence per se for a passenger ever to be on the platform of a moving train; on the contrary, we know there are many times when he has the right to be there, and there are numerous cases that have so held. In fact, there are decisions of this Court that have held it was negligence per se for a passenger to be on the platform of a moving train or in some other place not provided for him, and there are cases in this Court which have held directly to the contrary. As we view them, however, this question of conflict is more seeming than real, for the reason that they can be clearly separated into two distinct classes. In the first class of cases, that is those holding that it was not negligence per se for the passenger to be on the platform or other place not intended for riding, it was shown either that he had business there or that he could prove an excuse or necessity for being there. Of this class of cases, the far larger part embraced those where the passenger came upon the platform as the train was in the act of stopping at his destination, thus proving conclusively that he had a right to be there. The cases belonging to the first class are found in: 9 Rich 84; 51 S.C. 150 ; 61 S.C. 345 ; 62 S.C. 130 ; 83 S.C. 26 ; 83 S.C. 66 ; 85 S.C. 216 ; 88 S.C. 223 ; 89 S.C. 122 ; 94 S.C. 324 ; 96 S.C. 456 . In the second class of cases, that is those holding that it was negligence per se for the passenger to be on the platform, he had no business that required him to be there and could furnish no excuse or necessity to explain his presence there. Those belonging to the second class are found in: 58 S.C. 491 ; 72 S.C. 114 ; 72 S.C. 336 ; 80 S.C. 336 ; 81 S.C. 100 ; 81 S.C. 275 ; 90 S.C. 42 ; 97 S.C. 465 . But the question of obvious danger has never been allowed to operate in any case where the passenger or other party could not explain his presence on the platform or other improper place by the excuse of right as a matter of business or some other necessity equally entitled to respect in the law. 5 R.C.L. "Carriers," sec. 674; 3 Hutch. Carriers, sec. 1197; 72 Am. St. Rep. 121; 4 Elliott on R. R's, secs. 1629, 1630; 61 S.E. 171 (28 R.R. 735); 97 N.W. 431, 10 R.R. 602; 29 L.R.A. (N.S.), note on p. 325; 162 Fed. 665; 93 Am. Dec. 495, note; 43 Am. Dec. 366, note; 91 Am. St. Rep. 345; 88 Am. St. Rep. 827; 71 Am. St. Rep. 767; 128 Am. St. Rep. 1021; 32 Am. St. Rep. 17; 61 Am. St. Rep. 90 and note. Assumption of risks incident to operation of freight trains: Elliott, R. R's sec. 1629; 100 Am. St. Rep. 621; 2 Ib. 346; 58 Am. Rep. 111; 38 Fed. 822; 55 S.C. 389 ; 65 S.C. 447 ; 77 S.C. 337 . Plaintiff bound to prove his allegations: 45 S.C. 278 ; 84 S.C. 54 . No duty to make second stop, hence no negligence: 83 Am. St. Rep. 302; 58 S.C. 491 . Intoxication of plaintiff: 53 Ind. 163 ; 72 S.C. 162 . Nonsuit: 58 S.C. 491 ; 85 S.C. 216 ; 81 S.C. 100 ; 90 S.C. 42 . Charge on proximate cause: 58 S.C. 228 ; 59 S.C. 311 ; 70 S.C. 470 ; 71 S.C. 58 ; 73 S.C. 500 . Messrs. Adam H. Moss and William L. Glaze , for respondent, cite: As to evidence: 72 S.C. 449 ; 76 S.C. 476 . Custom as to stopping: 39 N.E. 797; 66 S.C. 528 ; 96 S.C. 456 ; 57 S.C. 209 . Explanation of deceased's presence on platform: 51 S.C. 154 . Nonsuit properly refused: 89 S.C. 314 ; 65 S.C. 444 ; 75 S.C. 293 ; 61 S.C. 357 ; 72 S.C. 354 ; 60 S.C. 74 ; 65 S.C. 430 ; 77 S.C. 377 ; 76 S.C. 378 ; 52 S.C. 323 . Evidence of conductor's wilful acts: 73 S.C. 502 ; 93 S.C. 342 ; 77 S.C. 370 ; 62 S.C. 138 ; 52 S.C. 444 ; 72 S.C. 392 ; 52 S.C. 566 ; 51 S.C. 154 ; 55 S.C. 392 ; 66 S.C. 537 . Charge proper: 51 S.C. 150 ; 62 S.C. 142 . Not misleading: 78 S.C. 70 ; 75 S.C. 307 . Proximate cause: 62 S.C. 141 ; 61 S.C. 360 ; 90 S.C. 431 ; 70 S.C. 492 ; 94 S.C. 324 . Rights of passenger while on platform: 4 R.C.L. 494; 32 C.C.A. 1; 1 L.R.A. (N.S.) 861. Questions for jury: 81 S.C. 111 ; 96 S.C. 458 . Failure to stop in accordance with custom: 77 S.C. 370 ; 66 S.C. 528 ; 96 S.C. 456 ; 57 S.C. 208 .

Opinion of the Court

The opinion of the Court was delivered by

Mr. ChiEE Justice; Gary.

This is an action for damages, alleged to have been sustained through the negligence and recklessness of the defendant, in causing the death of plaintiff’s intestate.

The allegations of the complaint material to the questions under consideration are substantially as follows:'

That on the 14th of February, 1913, while the local freight train of the defendant was standing upon the sidetrack at Cope, some distance south of the ticket office at said station, plaintiff’s intestate went into the passenger coach which the said local freight carried, and which was attached to the rear of said train, and became a passenger.

That shortly after plaintiff’s intestate became a passenger,, defendant caused the said train to back off the sidetrack on the main line, and to run up the main line to a considerable distance, until the switch could be changed, so that the said train in leaving the said station could go out upon the main line.

That as soon as the switch was changed, the defendant caused the train to move forward slowly down the main line towards the ticket office, as if to stop the passenger coach opposite .and in front of the ticket office, where it was the custom of the defendant always to stop said coach for the purpose of taking on passengers before leaving said station.

That as said passenger coach was about opposite the ticket office, moving along slowly up the main line, plaintiff’s-intestate came out upon the front platform thereof, and called and beckoned to his son, and while standing upon said platform, said coach which was then opposite and in front of the ticket office, and at the usual and regular stopping place at said station for taking on arid letting off passengers, the defendant by its negligence and recklessness suddenly increased the speed of the train, and at the same-time caused it to jerk suddenly and violently and to move- *75 on jerking, and to leave said station at a reckless and increasing rate of speed.

The defendant denied certain allegations of the complaint, and set up the defense of contributory negligence.

The jury rendered a verdict in favor of the plaintiff for $5,000, and the defendant appealed upon exceptions which will be reported.

1 The first assignment of error is because his Honor, the presiding Judge, allowed the plaintiff to introduce testimony to show that it was the custom of the defendant to stop said train, before leaving the sta^ tion, for the purpose of taking on passengers.

There.were allegations in the complaint showing such custom.

The defendant did not, therefore, have the right to object to testimony sustaining such allegations. Milhouse v. Ry., 72 S. C. 442, 52 S. E. 411.

2 The next assignment of error is because his Honor refused the motions for a nonsuit and the direction of a verdict,'on the ground that there was no testimony tending to sustain the cause of action for punitive damages.

It is only necessary to say that this exception can not be sustained, for the reason that there was testimony tending to prove the allegations of the complaint.

3, 4, 5 The remaining question arises out of the exceptions assigning error on the part of his Honor, the presiding Judge, as to the test of negligence of a passenger who is injured while on the platform of the car.

His Honor, the Circuit Judge, charged the following request, which was presented by the defendant:

“.If a passenger, without any emergency excusing it, rides in a place of obvious danger, which he knows, or by the exercise of ordinary care ought to know, is not provided for passengers, and such act contributes as a proximate *76 cause to his injury, he is guilty of contributory negligence, and can not recover.”

In disposing of defendant’s second request, the presiding Judge charged the jury as follows:

“Now, then, gentlemen, it is negligence, if it is obviously dangerous to be on the platform, and if it is not obviously dangerous to be on the platform it is not negligence, and that is a question for you to determine by all the evidence, in the case, and in connection with what I told you as to a man’s rights on a car.” (Italics added.)

■ He also charged the jury that “the question in this case is whether plaintiff’s intestate was at a place where he had no right to be, whether he was at a place that was openly and obviously dangerous, and where he had no right to he under the law as I have given it to you.”

There are two reasons why the exceptions raising this question can not be sustained.

1. The Circuit Judge charged the jury as requested by the defendant, and

2. When the charge is considered in its entirety, it will be seen that it was not prejudicial to the rights of the defendant.

Judgment affirmed.

Messrs. Justices Hydrick, Watts and Fraser concur in the opinion of the Court. Mr. Justice Gage dissents.

Footnote.—As to liability of railroad for injuries received by -passenger riding upon platform, see notes in 1 A. & E. Ann Cas. 315, 10 lb. 81(3, 1 L. R. A. (N. S.) 1145, 22 lb. 313, 16. 253; as to contributory negligence on behalf of such passenger, see notes in 24 L. R. A. 710, 29 L. R. A. (N. S.) 325, 21 OL R. A. (N. S.) 715, 17 L. R. A. (N. S.) 158.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.