Poliakoff v. Shelton , 193 S.C. 398 ( 1940 )

April 8, 1940.

The opinion of the Court was delivered by The defendant, W.M. Shelton, owns and operates the Red Top Bus Line, which is a common carrier of passengers for hire.

On June 28, 1936, the plaintiff, Mrs. Rachael Poliakoff, purchased a ticket for transportation on the defendant's line from Greenville to Anderson. After entering the bus at Greenville, and as it was proceeding in the usual manner along the highway, a large suitcase fell on her shoulder as she was sitting on the seat next to the aisle, and injured her.

The action was begun on May 1, 1937, in the Court of Common Pleas for Anderson County, and was tried before his Honor, Judge G. Dewey Oxner, and a jury.

The plaintiff's brother, who was sitting on the same seat with her, testified that he did not observe the baggage over him, and that it fell on Mrs. Poliakoff's shoulder; that there were many passengers on the bus; that the suitcase fell from above somewhere; that he did not know who put it there, nor who picked it up after it fell.

Mrs. Poliakoff testified that the suitcase fell on her shoulder while she was sitting down, and while the bus was running; that she did not see anyone put the suitcase in the bus, and that she did not know to whom it belonged; that no one around her was handling baggage at the time; that it did not fall from any person's hands; that no one was standing near enough to have his hands on the suitcase when it fell; that everything was quiet; that it fell from above her somewhere; and that she only knew that it fell on her.

This is all of the very brief evidence as to how the injuries to the plaintiff occurred.

The defendant offered no testimony, and at the conclusion of the evidence of the plaintiff moved for a directed verdict in his favor on the ground that there was a total failure of proof of any acts of negligence on the part of the defendant or its servants.

With the consent of counsel for both sides his Honor, Judge Oxner, reserved his decision, to be announced later. After the arguments and the charge the case was submitted to the jury, which found a verdict in favor of the plaintiff for $500.00 actual damages.

Thereafter, the question was fully argued before Judge Oxner, and on January 31, 1939, he passed an order granting the motion for the direction of a verdict in favor of the defendant and the setting aside of the verdict of the jury. The order of Judge Oxner will be set out in the report of the case.

The appeal is by the plaintiff from this judgment.

Certain underlying principles bearing upon cases of this sort have been clearly settled.

"Common carriers for hire owe the highest degree of care to their passengers for safe transportation from one point to another." Belcher v. Atlantic Coast Line RailroadCo., 175 S.C. 9, 177 S.E., 890.

"According to the rule in this Satte, there is no presumption of negligence on the part of the carrier from the bare fact that a passenger has been injured while on the carrier's train." Anderson v. South Carolina Railroad Co., 77 S.C. 434,58 S.E., 149, 150, 122 Am. St. Rep., 591.

"Such presumption does arise on proof of such injury as the result of some agency or instrumentality of the carrier, some act of omission or commission of the servants of the carrier, or some defect in the instrumentalities of transportation." Anderson v. South Carolina Railroad Company,supra.

See, also, Sutton v. Southern Railway, 82 S.C. 345,64 S.E., 401; Porter v. Davis, Director General, 118 S.C. 153,110 S.E., 121; Horne v. Southern Railway, 186 S.C. 525,197 S.E., 31, 116 A.L.R., 745.

The question before us for determination then is: Was there any evidence in the case that the plaintiff's injuries resulted from an agency or instrumentality of the carrier or from an act of omission or commission by the carrier's servants, or some defect in the instrumentalities of transportation?

Little can be added to the very clear decision of Judge Oxner. As pointed out by him the evidence does not even show that there was a rack; whether the passengers or the bus driver had control of the baggage; who put the suitcase in the bus, or when it was brought in.

There is absolutely no evidence of a defective rack, or that the carrier's employees knew the suitcase was in the bus; nor of any lack of inspection on their part, or whether an inspection would have disclosed that the baggage was in an unsafe position. Nor is there evidence that the carrier usually brought the baggage into the bus, or carried it out.

Under these circumstances, we think that the Circuit Judge correctly held that the testimony failed to show that the plaintiff was injured by an agency or instrumentality of the carrier, or as a result of a defect in the instrumentalities of transportation.

Was there evidence of some act of omission or commission of the servants of the carrier, so as to authorize a presumption of negligence?

A case similar to this has not arisen in South Carolina. Judge Oxner, in his order, cites the decisions of other states where pieces of baggage have fallen from racks, and those cases hold that no evidence of negligence on the part of the defendants appeared. Creahan v. Pennsylvania Railroad,123 Pa. Super., 268, 187 A., 51; Wade v. North CoastTransportation Company, 165 Wn., 418, 5 P.2d 985;Morris v. New York Central Railroad Company, 106 N. Y., 678, 13 N.E., 455; Whiting v. New York Central RailroadCompany, 97 App. Div., 11, 89 N.Y.S., 584; Louisville,etc., R. Co. v. Rommele, 152 Ky., 719, 154 S.W. 16, Ann., Cas., 1915-B, 267.

Judge Oxner properly held that while negligence may be proved by circumstantial evidence, yet the doctrine of res ipsa loquitur does not prevail in South Carolina; and the Court cannot speculate as to how the suitcase came to fall, as its fall may have been the result of an act of a fellow passenger, or it may have occurred in many other ways.

In the circuit order it is shown how this case is different from the cases of Bunch v. C. W.C. Railway, 91 S.C. 139,74 S.E., 363 and Durst v. Southern Railway, 130 S.C. 165,125 S.E., 651.

Other cases relied upon by the appellant are different, also.

The plaintiff in the case of Caldwell v. Pullman Company,132 S.C. 321, 128 S.E., 504, 505, stumbled over a suitcase which was partially projecting into the aisle of a Pullman car, as she arose early, and while the car was dimly lighted. The Court in that case said: "The proof shows that either the conductor or the porter could have seen the valise. The conductor was asleep, and the porter did not see it. It was placed in the car at Richmond by the porter, and the owner went to sleep. The jury could infer from the evidence that it was placed improperly."

In the case before us there was no evidence that the carrier's servants could have discovered the insecure position of the suitcase, nor is there any evidence that the bus driver or other employee of the defendant placed the baggage in the bus.

In Forbes v. Pullman Company, 137 S.C. 433,135 S.E., 563, 564, the plaintiff entered a Pullman car in the early morning. "She found the coach so dark, according to her testimony, that it was impossible for her to see the suit case left in the aisle by one of her fellow passengers. The employees of the company knew, when they invited her to enter the coach as a passenger, that the coach was dark, and they knew also that the aisle of a Pullman coach is frequently obstructed by luggage placed therein by passengers. No employee of the company accompanied the plaintiff to clear the aisle for her, and she testified that the aisle was not lighted so that she could see the obstruction for herself. While she was walking down the aisle trying to locate her seat without the assistance of any employee of the company, the train was put in motion, and she fell over the suit case in the aisle and sustained injuries."

In that case there was proof of negligence on the part of the carrier's servants.

The plaintiff in the case of Hall v. Southern Railway,162 S.C. 260, 160 S.E., 584, 588, sustained injuries by slipping on a banana peel, while walking down the aisle to get off the train. The opinion states that the employees of the railroad company "in effect admitted that it was their duty to keep the place where the passengers had to walk clear of such things. It was their contention that no such thing was there. There was also testimony tending to show that the railroad authorities knew that it was customary for passengers to eat bananas and throw the peels on the floor, where the passengers had to walk, practically every day, especially so on excursion trains, such as the train in question was. * * * A reasonable inference to be drawn from the testimony in the case at bar is that a banana peel in the aisle of a passenger coach is not an unexpected peril, but is an expected peril and danger."

In the case before us there was no evidence of knowledge by the carrier's servants of a dangerous situation.

We are of the opinion that the evidence in the present case is not sufficient to show an act of omission or commission on the part of the defendant's servants, from which a presumption of negligence could arise.

Under the evidence we do not see how it could be held that the defendant is liable, without holding that a carrier is an absolute insurer of the safety of its passengers in every instance, and that the bare fact that an injury occurs on a bus entitles the passenger to recover, regardless of negligence on the part of the carrier.

It follows that his Honor, Judge Oxner, properly directed a verdict in favor of the defendant, and the judgment of the Circuit Court is affirmed.

Judgment affirmed.

MR. CHIEF JUSTICE BONHAM and MESSRS. JUSTICES CARTER and FISHBURNE and MR. ACTING ASSOCIATE JUSTICE J. HENRY JOHNSON concur.