Craig v. Augusta-Aiken Railway Co. , 89 S.C. 161 ( 1911 )

July 7, 1911. The opinion of the Court was delivered by This is an action for actual and punitive damages, alleged to have been sustained by the plaintiff, through the negligence and wantonness of the defendant.

The complaint alleges, that on the 22d of September, 1906, the plaintiff because a passenger on the defendant's car at Augusta, Ga., for the purpose of being carried to Langley, S.C.; that soon after the car had started, the plaintiff because so incapacitated as to be utterly helpless, and was forcibly ejected and left in a dangerous place by the defendant; that the defendant warned its servants to look out for the plaintiff, while operating its other cars over said track, but that they negligently and wantonly failed, to keep a proper lookout for the plaintiff, in consequence of which, one of its cars ran over his arm, thereby rendering amputation necessary.

The defendant denied the allegations of negligence and wantonness, and for a defense alleged:

"That, at the time mentioned in the amended complaint, plaintiff was a passenger on a car of the defendant's railroad in Aiken county, South Carolina, and being guilty of disorderly conduct, and; drawing a knife and therewith threatening the agents of defendant, and cursing to the terror, annoyance and vexation of a large number of other passengers on said car, the conductor of said car stopped his train, where such offense was committed, and ejected said plaintiff from said car, using only such force as was necessary to accomplish such removal."

The defendant also set up the defense of contributory negligence.

The jury rendered a verdict in favor of the defendant, and the plaintiff appealed upon exceptions, which will be reported.

The first question that will be considered, is, whether there was error, on the part of his Honor, the presiding Judge, in charging the jury, that if the plaintiff was injured at a highway crossing, while in a helpless condition of intoxication, the defendant was not bound to keep a lookout, and owed him no duty (except not to injure him wilfully or wantonly), unless it knew that he was in a helpless condition.

In the case of Jones v. R.R., 61 S.C. 556, 39 S.E. 758, the Court stated the principle as follows:

"Even though the use of the track by the public as a walkway, was not for such length of time, nor of such character, as to give a legal right to so use the track, and even though the evidence, fell short of showing any positive consent of such use, by the company, yet if there was evidence tending to show knowledge of, and acquiescence in such use, without protest, such evidence would tend to show, that the railroad company had much reason to expect the presence of persons on the track, who were there not as bald trespassers, but using it with the knowledge and acquiescence of the (railroad) company. Under such circumstances, it would be the duty of the railroad company, to keep a reasonable lookout, or to give warning of the approach of the train, or generally to observe ordinary care, under the circumstances, to avoid injury."

This language was quoted with approval in the case ofSentell v. Ry., 70 S.C. 183, 49 S.E. 215, in which the Court held, that "where a person is sitting on the end of a crosstie, with his head in his hands, and his feet in a path along the track, which pedestrians had been using as a walkway for more than twenty years, without objection of the railway company, at a point on the track, at which he could have been seen by the engineer, for some distance before reaching him, it is proper to refuse a nonsuit, and to submit to the jury, the questions of the relation of the deceased to the company, and whether there was negligence on part of engineer in striking him with his engine, and whether it was duty of engineer to keep a lookout." (Syllabus.)

If, as is alleged, the plaintiff in the present case, was on the highway crossing, at the time of the injury, then there was even a greater necessity for the defendant, to keep a proper lookout, than in the cases just mentioned.

The exceptions raising this questions are sustained

Exceptions X and XI cannot be sustained, as it has not been made to appear, that there was an abuse of discretion, on the part of the presiding Judge.

These conclusions practically dispose of all the questions involved.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and the case remanded to that Court, for a new trial.