Jernigan v. Atlantic Coast Line R. R.

September 11, 1915. The opinion of the Court was delivered by This is an action for damages, alleged to have been sustained through the negligence and recklessness of the defendant, in causing the death of plaintiff's intestate.

The allegations of the complaint material to the questions under consideration are substantially as follows:

That on the 14th of February, 1913, while the local freight train of the defendant was standing upon the sidetrack at Cope, some distance south of the ticket office at said station, plaintiff's intestate went into the passenger coach which the said local freight carried, and which was attached to the rear of said train, and became a passenger.

That shortly after plaintiff's intestate became a passenger, defendant caused the said train to back off the sidetrack on the main line, and to run up the main line to a considerable distance, until the switch could be changed, so that the said train in leaving the said station could go out upon the main line.

That as soon as the switch was changed, the defendant caused the train to move forward slowly down the main line towards the ticket office, as if to stop the passenger coach opposite and in front of the ticket office, where it was the custom of the defendant always to stop said coach for the purpose of taking on passengers before leaving said station.

That as said passenger coach was about opposite the ticket office, moving along slowly up the main line, plaintiff's intestate came out upon the front platform thereof, and called and beckoned to his son, and while standing upon said platform, said coach which was then opposite and in front of the ticket office, and at the usual and regular stopping place at said station for taking on and letting off passengers, the defendant by its negligence and recklessness suddenly increased the speed of the train, and at the same time caused it to jerk suddenly and violently and to move on jerking, and to leave said station at a reckless and increasing rate of speed.

The defendant denied certain allegations of the complaint, and set up the defense of contributory negligence.

The jury rendered a verdict in favor of the plaintiff for $5,000, and the defendant appealed upon exceptions which will be reported.

The first assignment of error is because his Honor, the presiding Judge, allowed the plaintiff to introduce testimony to show that it was the custom of the defendant to stop said train, before leaving the station, for the purpose of taking on passengers.

There were allegations in the complaint showing such custom.

The defendant did not, therefore, have the right to object to testimony sustaining such allegations. Milhouse v. Ry.,72 S.C. 442, 52 S.E. 411.

The next assignment of error is because his Honor refused the motions for a nonsuit and the direction of a verdict, on the ground that there was no testimony tending to sustain the cause of action for punitive damages.

It is only necessary to say that this exception can not be sustained, for the reason that there was testimony tending to prove the allegations of the complaint.

The remaining question arises out of the exceptions assigning error on the part of his Honor, the presiding Judge, as to the test of negligence of a passenger who is injured while on the platform of the car.

His Honor, the Circuit Judge, charged the following request, which was presented by the defendant:

"If a passenger, without any emergency excusing it, rides in a place of obvious danger, which he knows, or by the exercise of ordinary care ought to know, is not provided for passengers, and such act contributes as a proximate cause to his injury, he is guilty of contributory negligence, and can not recover."

In disposing of defendant's second request, the presiding Judge charged the jury as follows:

"Now, then, gentlemen, it is negligence, if it is obviously dangerous to be on the platform, and if it is not obviously dangerous to be on the platform it is not negligence, and that is a question for you to determine by all the evidence, in the case, and in connection with what I told you as to aman's rights on a car." (Italics added.)

He also charged the jury that "the question in this case is whether plaintiff's intestate was at a place where he had no right to be, whether he was at a place that was openly and obviously dangerous, and where he had no right to beunder the law as I have given it to you."

There are two reasons why the exceptions raising this question can not be sustained.

1. The Circuit Judge charged the jury as requested by the defendant, and

2. When the charge is considered in its entirety, it will be seen that it was not prejudicial to the rights of the defendant.

Judgment affirmed.

MESSRS. JUSTICES HYDRICK, WATTS and FRASER concur in the opinion of the Court.

MR. JUSTICE GAGE dissents.