Craig v. Augusta-Aiken Railway Co. , 93 S.C. 49 ( 1912 )

This is the second appeal herein, the first being reported in 89 S.C. 161.

For convenience, we reproduce the statement then made by the Court, which was as follows:

"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 22d of September, 1906, the plaintiff became 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 became 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 plaintiff for $500, and the defendant appealed upon exceptions, which will be reported.

The exceptions will be considered in regular order.

First Exception. There are three reasons why so much of the exception cannot be sustained as assigns error on the part of his Honor, the presiding Judge, in charging the jury, that it is not the general duty of a railroad company to keep a lookout for people on its track.

1. Because the language of the presiding Judge, forms only part of a sentence, and when considered in connection with the entire sentence, and the other portions of the charge, it will be seen that it is free from error.

2. Because a similar ruling as applied to the facts of this case, was made upon the former appeal and is res adjudicata.Jones v. Ry., 65 S.C. 410, 43 S.E. 884.

The case of Butler v. Ry., 90 S.C. 273, shows that such was the ruling of this Court, upon the former appeal herein, for it says: "It was held in Craig v. Ry., 89 S.C. 161, that it is the duty of a railway company to keep a lookout for persons and pedestrians on its track at a railway crossing."

3. Because the defendant recognized this principle, when his fourth request was charged, which began as follows: "The jury is further charged, that while it is the duty of a motorman to exercise ordinary care, to keep a reasonable lookout for persons on the railroad track, on a public crossing, etc."

The remainder of the charge set out in the exception merely states a well recognized rule of conduct, both in the civil and criminal law. Furthermore, there is nothing in this part of the charge, upon which the assignment of error can be properly predicated.

Second Exception. In the first place, this instruction when considered, as it must be, in connection with the entire charge, is free from error. And, in the second place, even if erroneous, it was not prejudicial.

Third Exception. The exception contains only a portion of plaintiff's third request, which was charged by the presiding Judge; and when considered in connection with the entire request, it is free from error.

Fourth Exception. The language of the presiding Judge in the exception, is only a part of plaintiff's fourth request, which was charged with modifications. When it is considered together with the entire request and the modifications, it is free from error.

Fifth Exception. The presiding Judge modified the request, and when the language thereof is considered in connection with the modification and the general charge, it is free from error.

Sixth Exception. There was a lengthy modification of the request, and when the charge is considered in its entirety there is no error. Seventh Exception. When the charge as a whole is taken into consideration, it will be seen that the exception cannot be sustained.

Eighth Exception. The appellant has failed to show that even if there was error, it was prejudicial.

Ninth Exception. The appellant has failed to show that even if there was error, it was reversible.

For these reasons I dissent.