Durst v. Southern Railway Co. , 130 S.C. 165 ( 1924 )

Action by Mrs. George W. Durst, Jr., with whom her husband was joined as plaintiff, for damages on account of alleged personal injuries received by her while a passenger upon the train of the defendant company, caused by the negligence of the defendant Williams, flagman on the train.

It appears from the undisputed evidence that the immediate injury to Mrs. Durst happened in this way: Above the aisle of the car, about midway, there was a large kerosene lamp, which rested in a bracket attached to the ceiling; it was held in place by a catch; on the trip, at night, the lamp began to smoke and the flagman was sent for; in attempting to detach the lamp from the bracket or to correct the smoking, he allowed the lamp to slip from his hands, and in falling it struck the head of Mrs. Durst, fell on her lap and thence to the floor; the smoking wick was extinguished without further damage than to the clothes of Mrs. Durst; the lamp did not explode. Mrs. Durst continued on to her destination, Batesburg, where she stayed for three days, returning to Columbia, and thence to her home in Charleston. She was in a delicate condition at the time, and asserts that the blow and excitement caused great nervousness and suffering, which eventuated in hospital treatment and a miscarriage, which occurred in March, 1922, after the accident in December.

The Circuit Judge in his charge eliminated the matter of punitive damages. The jury rendered a verdict in favor of the plaintiff for $4,000. It does not distinctly appear in the record whether this verdict was against the railway company alone, or against the railway company and in favor of the codefendant flagman, although counsel for both sides have argued the case as if it had been against the railway company alone, and we will assume that such was the case.

It will not be necessary to consider any of the exceptions other than that portion of the 12th which assigns error to the Circuit Judge in charging that the jury could find a verdict against the railway company alone. He specifically charged the jury:

"If the lamp in question was overturned and fell in consequence of, and as a proximate result of, the failure of the defendant company to use such care, it would be responsible to plaintiff for any injuries, if any there were, thereby occasioned to her, regardless of whether or not the defendant Williams was also negligent in handling the lamp. * * * If, however, Williams was not negligent in handling the lamp, and did not negligently cause its fall, he would not be liable to plaintiff for any damages. If, however, the company was negligent in failing to use the proper care to keep the lamp secure and in causing it to be overturned or to fall, through some agency other than Williams, then under such circumstances the Company alone would be liable to Mrs. Durst, while Williams would not be." (The foregoing is taken from the opinion of Mr. Justice Cothran.)

The bare fact of injury does not raise a presumption of negligence. Anderson v. Railway, 77 S.C. 436;58 S.E., 149; 122 Am. St. Rep., 591. There may be a charge of negligence specific, general, or both. A general charge may be made, and an injury alleged to be in consequence thereof, and the injury proven, then negligence is presumed to have occasioned the injury, and the burden shifts to the railroad company. Allegations may be general as against the railroad and specific as to the servant or employee. The plaintiff may fail to establish the specific act and yet the railroad is subject to further pursuit and if the injury is proven under the allegations general, the railroad cannot escape except by force of the preponderance of its own testimony. Sullivanv. Railway, 82 S.C. 345; 64 S.E., 401. Porter v.Davis, 118 S.C. 153; 110 S.E., 121. Prescott v. Railroad,99 S.C. 422; 83 S.E., 781.

The allegations of negligence in this case were specific. The injury was the result of the flagman letting the lamp slip from his hands, which act is designated as his negligence, and it is the only negligence that is charged. It was error to admit evidence over objections, as to matters not alleged. Under the allegations of the complaint, if it is sought to hold the railroad company alone responsible because the jury was inflicted by some instrumentality of the railroad disconnected from the act of the flagman, we would have only the bare fact of the injury, for which there would be no recoverable liability. Anderson v. Railroad, supra.Williams v. Hines, 80 Fla., 690; 86 So., 695. Railroad Co.,v. Weathers, 120 Ga. 475; 47 S.E., 956. Railroad Co.v. Schied, 186 Ky., 452; 217 S.W. 124. The act of the flagman is the sole connecting link and, which, however, is the only negligent act alleged. It was error to charge the jury under the allegations of the complaint, that a verdict could be returned against the railroad alone. Jones v. Railroad,106 S.C. 20; 90 S.E., 183. Schumpert v. Railroad,65 S.C. 388; 43 S.E., 813; 95 Am. St. Rep., 802.