Talbert v. Railway Co. , 72 S.C. 137 ( 1905 )

July 11, 1905. The opinion of the Court was delivered by This appeal involves the correctness of the order of Judge Purdy sustaining the demurrer of defendant to the plaintiff's complaint, on the ground that the complaint fails to set forth the proper cause of action. It is thus necessary that the complaint and the demurrer thereto shall be reproduced. The complaint is as follows (the first paragraph is omitted, relating as it does to the corporate character of the defendant):

"2d. That the plaintiff is informed, believes and alleges that said Charleston and Western Carolina Railway Company operates and owns, and at the time hereinafter mentioned did operate and own, a line of railroad from the city of Augusta, in the State of Georgia, to the city of Spartanburg, in the State of South Carolina, together with tracks, cars, locomotives and other appurtenances thereto belonging; and said line of railroad runs, and at the times hereinafter mentioned did run, through the county of Edgefield, in which county the defendant has, and at the times hereinafter named did have, offices and agents for the transaction of business.

"3d. That plaintiff is a resident and citizen of the county of Edgefield, State of South Carolina, and has been living in said county for many years.

"4th. That on August 1st, 1904, plaintiff was visiting at McCormick, a regular station on defendant's said line of railroad, in Greenwood County, in the State of South Carolina, and desiring to leave for his home on the passenger train scheduled to leave about 3 o'clock p. m., said plaintiff went out to defendant's depot, near which the passenger train he desired to take had stopped, and plaintiff went in the depot for the purpose of buying a ticket, upon which he meant to become a passenger on said train; but the defendant negligently, carelessly, wantonly and wilfully failed to have a ticket agent in said depot at said time, and the plaintiff waited in said depot for the purpose of buying a ticket for fully five minutes, and plaintiff saw the conductor of said train in the depot, and he told the said conductor, acting in the scope of his duties and agency, the plaintiff's business there, and the said conductor, acting in the scope of his duties and agency replied, `The agent is not here, I am going, you had better get on the train,' and seemed to be in a hurry. And then they went out to the train, and the said conductor, acting in the scope of his duties and agency, directed plaintiff again to get on the train, and said conductor saw that plaintiff had only one hand, but negligently, carelessly, wantonly and wilfully failed to see or assist the plaintiff on the train, or hold said train until plaintiff had boarded it, but as soon as they came out of the depot to the train the said conductor signalled the engineer forward, and then boarded said train on the baggage car, and then and there knew the said train would be in motion before plaintiff could board it, and the servants and agents of the defendant, acting in the scope of their duties and agency, and having control and management of the engine and said train of cars, negligently, carelessly, wantonly and wilfully moved the said train of cars before plaintiff could board the same, and when the nearest passenger coach was some thirty yards from the plaintiff, following the directions, negligently, carelessly, wantonly and wilfully given him by the conductor of the said train, plaintiff ran to meet the passenger coaches so that he could board the train, before it moved rapidly, and reached it while it was moving slow, and he caught the iron arm of the steps leading up to the platform of the coach attached to and being a part of the said train, and just as he put one foot on the bottom step of the steps leading up to the platform of the front part of the coach attached to and being a part of said train, a large trunk which the defendant then and there negligently, carelessly, wantonly and wilfully permitted to be on the premises of the defendant, where passengers got off and on trains passing on said line of railroad, near the railroad track on which said train was passing, and the trunk struck the plaintiff on the left hip and knocked him around between two of the coaches of the said train and plaintiff's feet drug along on the railroad track between the coaches, the wheels of the next rear coach almost touching his feet, but finally the plaintiff made a great effort and swung or threw himself around, opposite the arm of the step to which he was holding, and by that time the said train was moving rapidly and jerked and threw him loose from the train and he fell hard against the ground, whereby his back was sprained, wrenched and injured and made sore, and his nervous system was shocked and deranged and he was badly frightened, and the agents and servants acting in the scope of their duties and agency, then and there managing and controlling said train, negligently, carelessly, wantonly and wilfully ran off and left plaintiff, sick and in a crippled condition, and gave him no attention whatever, and he was forced to remain in the town of McCormick until the next day at 10 o'clock a m., before he could get a train to Parksville, a station on the said line of railroad where he desired to go.

"5th. That the plaintiff went upon the premises of the said defendant for the purpose of becoming a passenger on said train of defendant and had more money than enough to pay his fare, and actually boarded the said train as aforesaid as a passenger.

"6th. That the plaintiff was sick and suffering bodily pain and mental anguish from said injuries, which said injuries were caused by the negligence, carelessness, wantonness and wilfulness of the agents and servants of the defendant having the control and management of the said train and acting in the scope of their duties and agency, in not having the ticket agent in the station house or depot at the time aforesaid in time for passengers to buy tickets as advertised by the defendant; and by the negligence, carelessness, wantonness and wilfulness of the conductor of said train acting in the scope of their duties and agency and failing to see and help the plaintiff on the train when he knew the same would be in motion before the plaintiff could board it; and by the negligence, carelessness, wantonness and wilfulness of the servants and agents in charge of said train acting in the scope of their duties and agency in moving the said train and starting from said depot before the plaintiff had boarded the train; and by the negligence, carelessness, wantonness and wilfulness of the defendant and its agents and servants acting in the scope of their duties and agency in permitting the said large trunk to be on the premises of the defendant so near the said railroad track that persons boarding the train on that side, if the train were in motion, would come in contact with and strike against the said trunk; by reason of all and each of which said negligent, careless, wanton and wilful acts, plaintiff was injured as aforesaid.

"7th. That the said injuries and bruises and sickness were caused by the negligence, carelessness, wantonness and wilfulness of the defendant as aforesaid.

"8th. That in consequence of said injuries and sickness and bruises the plaintiff has suffered great bodily pain, fright and mental anguish and is permanently injured in his person, and cannot perform his usual work and will never be able to pursue his calling as formerly, to his damage $5,000."

The grounds of demurrer are: "First. Because the allegations of the complaint do not show negligence on the part of the defendant.

"Second. Because it appears upon the face of the complaint that the injury the plaintiff may have received was caused by his own negligence and want of due care.

"Third. Because the allegations of the complaint show contributory negligence on the part of the plaintiff."

The Circuit Judge in a written order sustained the defendant's demurrer, which order must be reported.

After judgment, the plaintiff appealed upon seven grounds.

We will pass upon these exceptions in their order; the first ground of appeal is as follows: "Because the presiding Judge erred in sustaining the demurrer interposed by the defendant to the plaintiff's complaint, and in dismissing the said complaint upon the ground that it does not state facts sufficient to constitute a cause of action; whereas, the complaint stated facts from which the inference of negligence of the defendant could be drawn. Second. The presiding Judge passed upon the question of contributory negligence, which was the question for the jury. Third. As to whose negligence was the proximate cause of the injury was a question of fact for the jury, and the Judge was without power to decide it on demurrer to the complaint."

We think that there is merit in this first exception, because when the conductor bade the plaintiff get aboard of this train and he saw that the plaintiff had only one arm and started with him to get on the train, the plaintiff was entitled to be allowed to do so before the conductor ordered the engineer to start his train. There were some allegations, therefore, of negligence of the defendant. Again: Contributory negligence arising as it is said from the defendant attempting to board a train in motion, acting as the plaintiff did upon the direction of the conductor himself, these allegations are beyond the Circuit Judge's power to pass upon. These were allegations of fact which the jury would test upon hearing the testimony bearing thereon. This view is clearly sustained by the opinion of this Court in Creech v. the Railroad Company, 66 S.C. 528, 533,45 S.E., 86. It is there said: "We will first consider the complaint with a view to ascertaining whether it stated such contributory negligence on the part of the plaintiff as should defeat a recovery, as a matter of law. For the purpose of this question, we, of course, must assume that the complaint states a case of actionable negligence on the part of the defendant, for a question of contributory negligence cannot properly or logically arise unless the defendant has been guilty of negligence, which is a proximate cause of the injury. The case of Jarrell v. Railroad Co., 58 S.C. 492,36 S.E., 910, approved in Elkins v. R.R. Co., 64 S.C. 561,43 S.E., 19, shows that while contributory negligence is ordinarily a matter of defense, yet, if the complaint shows contributory negligence by the plaintiff, that would render the complaint demurrable for insufficiency, since it contained allegations which would defeat recovery on the cause of action alleged. With this rule in mind, the Circuit Court examined the complaint, and reached the conclusion that the facts stated did not show contributory negligence as matter of law."

We must remember that the defendant's train had been at a standstill for at least five minutes and that it did not begin to move until the conductor and the plaintiff were trying to get upon it. No inference by allegation appeared in the complaint as to plaintiff's negligence in thus trying to board the train, or if any such inference could be drawn it would have been the work for the jury and not for the Circuit Judge. After a careful examination of the allegations of fact, we think that the demurrer should have been overruled, and we, therefore, sustain this exception of the appellant.

"Second. Because the presiding Judge erred in deciding that it was not negligence for the defendant to have no ticket agent in the office just before a regular passenger train was to depart; whereas, it was a question of fact for the jury whether it was negligence or not, for while it was not necessary to buy a ticket to be transported as a passenger, it was necessary to have a ticket to get baggage checked, and the defendant ought to have had an agent in the office to give information to passengers; it was a question for the jury." There is nothing in this exception, no act of the legislature requires ticket agent to remain in his office after the arrival of a train; though he must be there for thirty minutes preceding the arrival. The law supposes that a person will attend to the checking of his baggage before the arrival of the train. There is no allegation in this complaint that plaintiff had a trunk to be checked. This exception is overruled.

"Third. Because the presiding Judge erred in holding and deciding that the statement of the conductor to the plaintiff, `I am going, you had better get on the train,' was a warning that the train was going to move, and not an invitation to get on the train; whereas, it was a question of fact for the jury whether the conductor's statements were a warning that the train was going to move and not attempt to board it, or an invitation to the plaintiff to board it." We sustain this ground of appeal. The Circuit Judge was in error when he passed on these allegations of the complaint, susceptible as they were of at least two constructions

"Fourth. Because the presiding Judge erred in deciding that if a natural inference be drawn from the complaint, the plaintiff must have delayed further when he and the conductor went out to the train together; whereas, the inference is to the contrary, at any rate, this was a question of fact that could not be decided on demurrer, and was a question for the jury; and, further, it raises the question of contributory negligence, which Judge has no right to decide." We must sustain this exception. It is no part of the duty of a Judge in passing upon demurrer to the complaint to employ his time in drawing natural inferences outside of the allegations of the complaint. This exception is sustained.

"Fifth. Because the presiding Judge erred in holding and deciding, `that plaintiff brought about the injury by his own fault and want of care, if it was manifestly negligent for the plaintiff, having only one hand, to attempt to board the train without the assistance of the conductor;' whereas, the word `manifestly' is not used in the complaint at all, but it is alleged there that the train was moving slowly; the question was one for the jury to decide, whether the conductor was negligent in not helping on the train a man with only one hand, when he saw, the complaint alleges, that he had only one hand, or whether plaintiff was guilty of contributory negligence."

This Court, in the case of Madden v. R.R. Co., 35 S.C. 381,383, 14 S.E., 713, where the question was as to error of the Circuit Judge in overruling the demurrer based upon the ground that the complaint did not state facts sufficient to constitute a cause of action, held: "To sustain an action like this, it is necessary for the plaintiff to allege and prove that she has been injured in her person by the negligence of the defendant, the cause of action being the negligence of the defendant, whether of omission or commission, followed by some injury resulting therefrom. There being no question that the fact of injury is sufficiently alleged in the complaint, the only inquiry is, whether the other element in the cause of action — the negligence of the defendant causing the injury — has likewise been sufficiently alleged. Negligence being a mixed question of law and fact, it is not sufficient to allege in general terms that an injury has been sustained by reason of the negligence of the defendant, but the plaintiff must go on and allege the facts constituting such negligence which, if believed by the jury, would be sufficient to warrant a finding that the defendant had been guilty of negligence. So that the real inquiry here is whether the facts stated in the complaint as constituting negligence are such as, if believed by the jury, negligencemay be reasonably inferred by the jury, it being exclusively for the jury to say whether negligence ought to be inferred from such facts."

In that same case, it is a question as to what aid should be rendered by the conductor to a person apparently infirm and whose infirmity was known to the conductor, the question of negligence was a question for the jury. This exception is sustained.

"Sixth. Because the presiding Judge erred in holding and deciding, "There is no allegation that he did not see the trunk, and if there had been such allegation it must be concluded by natural law, that if he had his eyes open he could not have failed to have seen such an object, etc.;' whereas, on demurrer nothing can be added to or inserted in the complaint, that the plaintiff did not put there, and no inference can be drawn from the complaint that the plaintiff saw the trunk, from the fact there stated, and the rule is, that a person is supposed to act with care until the contrary be shown; at any rate, whether the defendant was negligent in allowing the trunk to be on the premises, and whether plaintiff was guilty of contributory negligence in boarding the train at the time he did, and whether the defendant exercised extraordinary care protecting its passenger, the plaintiff, were questions that should have gone to the jury, and not decided by the presiding Judge on a demurrer to the complaint." We sustain the exception for the reasons set up by the appellant.

"Seventh. Because the presiding Judge erred in not overruling the demurrer to the complaint, and in not deciding that the complaint stated facts sufficient to constitute a cause of action, as the statement of facts gave inferences of negligence on the part of the defendant, as to each and all the causes of action jumbled therein, the complaint was sufficient, if there was an inference of negligence of the defendant as to any one of the causes of action therein set up." This seems to be a rehash of the exceptions already considered. Having sustained them, we sustain this also.

It is the judgment of this Court, that the judgment of the Circuit Court sustaining the demurrer herein is overruled and reversed, and that this action is remitted to the Circuit Court for such further action as may be necessary.