McKittrick v. Greenville Traction Co. , 88 S.C. 91 ( 1911 )

March 9, 1911. The opinion of the Court was delivered by This is an action for damages, alleged to have been sustained by the plaintiff, through the wrongful acts of the defendant.

The complaint alleges "that plaintiff was a stranger to the city of Greenville, and when the car had reached North street and stopped, the conductor in charge of said car motioned and directed plaintiff to get off, and plaintiff immediately arose from her seat, passed out of said car, and was descending the steps from said car, when the defendant negligently, recklessly, wantonly, and in conscious disregard of the plaintiff's rights and safety, caused said car to be suddenly started forward, whereby plaintiff was thrown from the steps of said car into the mud in the street, and against the rocks constituting the pavement of said street."

At the close of the plaintiff's testimony, the defendant's attorneys made a motion for a nonsuit, as to the cause of action for punitive damages, which was refused.

The jury rendered a verdict in favor of the plaintiff for $250.00, and the defendant appealed upon exceptions, which will be reported.

First Exception. The plaintiff testified as follows: "What did you tell the conductor, if anything? I told him that I wanted to go to the postoffice, and told him I was a stranger, and didn't know anything about the town, and to please tell me when to get off, and he said he didn't go to the postoffice, and I would have to get off and walk a distance, and he told me to watch him, and when he motioned to me, for me to get off. Did you speak to him again about it? Yes, sir; I told him a time or two, to tell me when to get off. Did he tell you to get off? Yes, sir. Where was he? He was up at the front. He had his hand up and made a bow, and motioned for me to get off. He said ``all right get off.' He told me to watch him, and when he made a motion, for me to get off. When he motioned to you what did he say, if anything? He said ``all right, off.' In what part of the car were you sitting? About middle way. Was his face toward you when he motioned? Yes, sir. What did you do when he did that? I rose and went out, and as I started off, the car gave a sudden jerk, a quick jerk, and throwed me out on the ground. What part of the car had you gone to? I was out on the platform, and was fixing to step out, and it give a jerk and throwed me to the ground. You had already gotten to the platform? Objected to by counsel for the defendant. Tell how far you had gotten before the sudden jerk by the car. I was out on the platform, ready to step off of the car. What were you ready to step off of? I was ready to step out on the steps. From the steps to where? I was ready to step out of the car, when it give a jerk.

"Court: Were you going to step on the ground, or where? On to the steps.

"Mr. McSwain: From the steps to where? To the ground. What happened to you while you were in that position? The jerk came and throwed me out. Where did it throw you to? Out on the hard street and into the mud."

This testimony tends to show, that the plaintiff was a stranger in Greenville, and had requested the conductor to let her know, when to get off the car; that he motioned to her and said, "all right, get off;" that when she had reached the platform, and was about to step off the car, which was then standing still, it gave a quick and sudden jerk, and threw her out on the ground. Under such circumstances, it cannot be successfully contended, that there was no testimony whatever, tending to show reckless disregard of the plaintiff's rights as a passenger.

Second Exception. The rule is thus stated in the case ofAnderson v. Ry., 77 S.C. 434, 58 S.E. 149: "According to the rule in this State, 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, but that 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."

This language is quoted with approval in Brice v. Ry., 85 S.C. which cites the following cases: Steele v. Ry.,55 S.C. 389, 33 S.E. 509; Jarrell v. Ry., 58 S.C. 494,36 S.E. 910; Doolittle v. Ry., 62 S.C. 193, 40 S.E. 133;Stembridge v. Ry., 65 S.C. 447, 43 S.E. 969; Hunter v.Ry., 72 S.C. 340, 51 S.E. 860; Brown v. Ry., 83 S.C. 53,64 S.E. 1012; to which may be added, Williford v. Ry.,85 S.C. 301.

Third Exception. This exception cannot be sustained, for the reason that it cannot be successfully contended, that the moving of the car was not an agency or instrumentality of the defendant. The evidence above quoted shows that the request did not refer to a passenger jumping from a car, already in motion, but to a passenger thrown while alighting, in the ordinary way, by the carrier's initial act of moving the car.

Fourth Exception. Specifications of error (a), (b) and (c) must be overruled, for the reason that they do not raise a question, as to the soundness of the charge as a legal proposition; and, it has not been shown, that it was prejudicial error, to submit it to the jury. In the case of Mitchell v. Leech, 69 S.C. 413, 48 S.E. 290, the Court says: "His Honor, the presiding Judge, should have construed the instruments of writing introduced in evidence, and in the manner just stated, but his failure to do so, was not prejudicial to the appellants; for his charge gave the jury the opportunity of finding against the plaintiff, upon a question of fact, that should not have been submitted to them."

Subdivision (d) cannot be sustained, for the reason that the presumption arising from the fact, that a party was injured through the instrumentality of the carrier, continues throughout the trial of the case. Mack v. Ry., 52 S.C. 323,29 S.E. 905; 40 L.R.A. 679; Ritter v. Ry., 83 S.C. 213,65 S.E. 175; Williford v. Ry., 85 S.C. 301.

Judgment affirmed.

MR. CHIEF JUSTICE JONES did not sit in this case.