Cave v. Railway , 94 S.C. 282 ( 1913 )

This is an action for damages to a passenger. The plaintiff claims that he was a passenger on the defendant's road from Estill, S.C. to Savannah, Ga., with a return ticket and returned on an excursion train. That no seat was provided for him and he was forced to ride a part of the way on the platform of the coach and caught cold, from which he suffered considerably. That when he demanded a seat from the agent of the defendant, the agent insulted the plaintiff and held him up to the scorn of the other passengers. The plaintiff claimed that his injuries were negligently and wilfully inflicted. The defendant put in a general denial and also pleaded contributory negligence in that it was not necessary for plaintiff to stand on the platform and he did so in violation of instructions to passengers. On the trial the defendant claimed that if the train was overcrowded the plaintiff could not recover because he was guilty of contributory negligence in boarding an overcrowded train.

The jury found a verdict for plaintiff for two hundred dollars. From the judgment on this verdict defendant appealed.

There are five exceptions, but they raise but three questions:

1. Was there any evidence of actionable language?

2. Was there any evidence of negligence or wilfulness?

3. Was there indisputable evidence of contributory negligence?

1. Was there any evidence of actionable language? The exact language used was not given on the trial, and as this Court has held in Daniels v. Railroad, 62 S.C. p. 16,39 S.E. 762, that a railroad company is "not liable for any language used by the conductor unless it was abusive," the exception that embodies this proposition should be sustained.

2. Was there any evidence of negligence or wilfulness? There was some evidence. There was evidence as to the crowd in Savannah at the time. The size of this special excursion train was shown. It was for the jury to say whether reasonable care for the safety and convenience of its passengers required better accommodations, and if the jury thought that reasonable care did require more room, then it was also their province to say whether the failure to provide for the crowd they might reasonably expect was wilful and wanton or no. Inasmuch as this case will have to go back for a new trial, this Court ought not to discuss the evidence further.

3. Was there indisputable evidence of contributory negligence? This Court cannot say that there was. Whether it was negligence in the plaintiff to get on the train; whether it was too crowded to allow him standing room inside; whether it was his duty to put on his overcoat or whether the want of an overcoat was the cause of plaintiff's sickness, were all questions for the jury. So far as I know the jury may have based its finding solely on insulting language and I think

The judgment of this Court should be that the judgment of the Circuit Court be reversed and the cause remanded for a new trial.