Berley v. Railway , 83 S.C. 411 ( 1909 )

August 28, 1909. The opinion of the Court was delivered by The action is for damages alleged to have been suffered by the plaintiff from the failure of the defendant to stop its train at Swansea, a station on its road, where the plaintiff had purchased a ticket, and was waiting to take the train to Lexington. The appeal is from an order striking out as irrelevant and redundant the portions of the complaint indicated by brackets.

There is no allegation that the defendant had notice that the plaintiff was ill. Hence there was no basis for the recovery of damages for any increased injury, or suffering, arising from the plaintiff's illness. The cases on the subject are cited in Kolb v. Ry. Co., 81 S.C. 536,62 S.E., 872. The words, "who was ill," were properly stricken out.

The failure to stop a train at a station implies no personal reflection on persons expecting to board it. There is no allegation that the failure to stop was accompanied by contumely or personal abuse; and injured feelings and insult are certainly not proximate results of a mere failure to stop a train. The Circuit Judge was, therefore, right in striking out the words "was insulted, his feelings injured."

We are of the opinion that there was error in striking out the following allegations: "he was compelled to remain at Swansea in the cold wind for more than an hour and was compelled to procure a private conveyance to carry him to his home at Lexington through the country in the cold wind, during all of which time he suffered much pain, annoyance and inconvenience; he was greatly annoyed, delayed and inconvenienced in reaching Lexington; his illness was very much increased by being exposed to the cold wind in reaching his home at Lexington, and from the annoyance, delay and inconvenience; he was subjected to pecuniary loss and expense and was otherwise greatly injured." In Milhouse v. Ry. Co., 72 S.C. 442, 450, 52 S.E., 41, and Rountree v. R.R. Co., 73 S.C. 268,53 S.E., 424, it was held: "When there is testimony showing that the inconvenience was the direct and proximate result of negligence or wilfulness, it may be taken into consideration by the jury in awarding damages."

In Carter v. Ry. Co., 75 S.C. 355, 363, 55 S.E., 771, a case relied on by defendant, the plaintiff being misdirected by defendant's agent took a train not scheduled to stop at Zirconia, which was her station. She refused to stop at Saluda, the preceding station, and take the following train to her destination, but chose to go on to Flat Rock, a station beyond, and take a walk of nine miles over a rough mountain trail. The Court held that the evidence failed to show any necessity to take the long walk, but on the contrary, admitted of no other inference than that ordinary prudence required Mrs. Carter to get off at Saluda and take the train to Zirconia, her destination. Under these circumstances, it was held that the defendant was not liable for the hardship resulting from the walk from Flat Rock, because there was no necessity to take the walk. In the course of the discussion, the Court says: "The vital difference between this case and the case of Pickens v. R.R. Co., 54 S.C. 511,32 S.E., 567, is that in that case there was evidence that the railroad company having failed to furnish any car at Aiken so that Mrs. Pickens could continue her journey from Augusta to Edgefield, she had no alternative but to leave the station and encounter the hardship of the storm from which she suffered. Here the plaintiff without necessity chose to make the long journey over the mountain trail."

We think respondent's counsel has well stated the law as established by the cases in this State, in these two propositions:

1. "For failure to stop a train on flag the railroad is responsible to the person desiring to take the train, for injuries that are the direct and immediate consequence of its negligence in failing to stop, but it is not responsible for injuries proximately resulting from the exposure unnecessarily incurred by the prospective passenger, or from his own negligence or reckless conduct.

2. "Although the carrier has been guilty of negligence towards the prospective passenger, when it fails to stop its train on flag for him, nevertheless the passenger is under a duty to use reasonable efforts to minimize his damages, and can not recover for any injuries that might have been avoided by the use of reasonable care and diligence, and by the exercise of proper precautions."

It does not result, however, from the application of these principles that the portion of the complaint under consideration was irrelevant and redundant for the allegation is, that the plaintiff was "compelled to remain at Swansea in the cold wind," etc., and "was compelled to procure a private conveyance to carry him home through the country in the cold wind," etc. This is an allegation that the course taken by the plaintiff and his consequent exposure, etc., was a necessity forced on him by the defendant's breach of duty. Hence as a question of pleading, the allegation should not have been stricken out. If the plaintiff should fail to introduce evidence tending to show that his ride through the country and his exposure to cold was rendered necessary by defendant's failure to stop the train, then his case on that point will fail on the evidence.

It may be that the allegation was indefinite in not setting out facts tending to show that the plaintiff was "compelled" to incur the exposure, and in not indicating the nature of the pecuniary loss, expense and injury and how it was incurred But that question is not involved in the appeal, and on it we express no opinion.

The judgment of this Court is, that the judgment of the Circuit Court be modified in accordance with the views herein expressed.