Mixson v. Southern Rwy. Co.

Action for $3,000 damages, on account of personal injuries alleged to have been sustained by the plaintiff, while a passenger on a train of the defendant Southern Railway Company, but riding in a car of the defendant Pullman Company under a contract with that company, from Columbia to Union, on October 22, 1923.

The plaintiff alleges that she boarded the train in Columbia with a railroad ticket to Union and a Pullman ticket entitling her to a seat for the journey; that when the train stopped at Union the station was not announced; that after a short delay she ascertained that she had reached her destination; that she went to both front and rear doors of the Pullman car in an effort to alight, but found the vestibule doors at each end locked; that with the assistance of a fellow passenger she then hurried forward through five passenger coaches, seeking an exit, but found all side doors locked, until she reached the front end of the fifth car, which was open; that as she attempted to alight without the assistance of a stool or the help of any of the employees on the train, a violent and sudden forward movement of the train threw her to the ground, inflicting the injuries of which she complains. The complaint specifies the particulars in which the defendants are alleged to have been negligent, in the eight paragraph, as follows: "That the injury and damage to the plaintiff as aforesaid was caused by the joint, concurrent, several, and individual acts of negligence, carelessness, recklessness, willfulness, and wantonness on the part of the defendants, both or either of them, their agents and servants," in the following particulars, to wit:

"(a) In failing to notify the plaintiff of her arrival at her station as it was their duty to do.

"(b) In failing to have the door of the car in which plaintiff was riding open so that plaintiff could alight.

"(c) In failing to give to the plaintiff, an aged lady, proper assistance in alighting from said train, as it was their duty to do.

"(d) In failing to provide a stool or other assistance for plaintiff to alight at said door that was open.

"(e) In failing to have some one at said open door to assist the plaintiff in alighting from said train safely.

"(f) In causing said train to start suddenly and violently forward, without any warning, as plaintiff was alighting at said time and place, all of which was known or should have been known to the defendants.

"(g) In failing to furnish plaintiff with a safe passage from Columbia to Union, S.C. her destination, and in failing to transport plaintiff safely.

"(h) In throwing the plaintiff suddenly and violently forward while she was a passenger on said train by starting said engine suddenly forward.

"(i) In injuring the plaintiff through the instrumentality of the defendants while plaintiff was a lawful and legal passenger upon the train and cars of the defendants."

The defendants answered separately denying the material allegations of the complaint.

The case was tried before his Honor, County Judge Whaley, in January, 1925.

The plaintiff offered evidence which tended to sustain the allegations of the complaint and the defendants' evidence contradicting it. At the close of the evidence, each defendant made a motion for a directed verdict, the Pullman Company upon the ground that there was not sufficient evidence of actionable negligence on its part which contributed as a proximate cause of the injury complained of, and the Southern Railway Company upon the following grounds:

"(1) No reasonable inference can be drawn from the testimony except that there was no violent or unusual movement of the train which acted as a proximate cause of the plaintiff's injury.

"(2) That no notice to the train conductor and other employees and agents who were in charge of the train proper was given that the plaintiff needed any assistance or that she was going to get off at the time that she did, and all the evidence shows that no member of that crew was aware of that intention to get off until it was too late to render her any assistance.

"(3) That no reasonable inference can be drawn from the testimony except that the Pullman Company rendered to the plaintiff all the services and duties which were owed to her by the railroad company under its contract to carry."

Both motions were refused. After the charge of the Court, the jury returned the following verdict:

"We find for the plaintiff the sum of five hundred ($500.00) dollars against the Pullman Company, acting as agent of the Southern Railway Company."

The "case" contains the following statement:

"The attorneys for both defendants left the Court room for approximately 30 minutes when the jury retired, and notified the Court that they could be found at the office of Mr. Douglas McKay during that interim, and receiving no phone message in approximately 30 minutes, they returned to the Court room and found that the jury had returned a verdict and had been discharged, and there was no opportunity for either of counsel to make any objection as to the form of the verdict."

Thereafter the plaintiff gave notice of a motion to be made before his Honor, Judge Whaley, on March 31, 1925, "for an order entering up the above-entitled judgment in the manner required by law."

The defendant Southern Railway Company then served upon the plaintiff and upon the Pullman Company notice of a motion that if an order for judgment should be directed to be entered against the Southern Railway Company upon the said verdict, such order shall declare the Pullman Company primarily and the Southern Railway Company secondarily liable therefor.

The Pullman Company also served upon the plaintiff and upon the defendant Southern Railway Company notice of a motion that if an order for judgment should be directed to be entered against the Pullman Company upon the said verdict, such order shall declare the Southern Railway Company primarily and the Pullman Company secondarily liable therefor.

Upon the hearing of the several motions, the plaintiff moved for judgment upon the verdict against both of the defendants; the Southern Railway Company objected to any judgment being entered against it, on the ground that the verdict would not justify the rendition of such a judgment; the Pullman Company objected to any judgment against it, on the ground that it could be entered only against the Southern Railway Company. Each of the defendants then pressed its motion, as above referred to.

His Honor, Judge Whaley, thereupon signed an order directing the entry of judgment against both of the defendants, upon the ground "that the jury intended the effect of its finding to be a liability on the part of the carrier, Southern Railway Company, and its agent, the Pullman Company," and that as between these companies the Pullman Company was primarily and the Southern Railway secondarily liable upon the judgment directed to be entered against both.

From this order, and from the judgment entered upon the verdict, the defendants have separately appealed.

Appeal of Southern Railway Company. — The main objection, which only needs to be considered, of the Southern Railway Company, to the order directing judgment to be entered against it, is that the verdict was not a verdict against that company, and cannot legally support the judgment; that the words, "acting as agent of Southern Railway Company," merely indicate the particular delict of the Pullman Company.

The verdict upon its face is not against the Southern Railway Company; it is, "We find for the plaintiff the sum of five hundred ($500) dollars against the Pullman Company"; the words that follow "acting as agent of the Southern Railway Company" can be construed only as a finding that in the primary, individual duties imposed upon the Pullman Company, it was free from any charge of negligence, but that, as representing the railway company in the discharge of duties imposed upon it, by the contract of carriage entered into between the railway company and the passenger, it was guilty. That finding of the jury, before it was crystallized into a verdict, of course would have justified the jury in formulating a verdict against both companies, and perhaps their intention was that it should have that effect; but there is nothing before us but conjecture as to such intention. They may have concluded that as the entire fault lay with the Pullman Company (so indicated by the verdict), that company, amply able to respond, should bear the entire burden, and that no verdict should be rendered against the railway company; we cannot tell. It is sufficient to say that they did not find a verdict against the railway company, and if so, no judgment of course could be entered against that company.

The case of Campbell v. Seaboard Air Line R. Co., 83 S.C. 448;65 S.E., 628; 23 L.R.A. (N.S.), 1056; 137 Am. St. Rep., 824, is ample authority for the proposition that a railroad company is not relieved of any of the duties which it owes to a passenger, by reason of the passenger's having made a separate contract with a sleeping car company for certain special accommodations; it cannot withdraw its own employees from this service and substitute and rely upon the sleeping car company and its employees to perform the service as persons acting apart from itself; when it relies upon such company, through its employees, to perform the public duties as a common carrier which it has assumed, the railroad company adopts them as its agents.

The Pullman Company thus became the agent of the carrier and liable to a passenger for dereliction of duty on the part of its employees which may have caused injury to such passenger. The liability of the railroad company and of the Pullman Company is joint and several, in the sense that the plaintiff had the right to sue either or both in the same action; that the railroad company would have been liable if its agent the Pullman Company had been guilty of negligence, there can be no doubt, and it could have been sued separately. Washington Gaslight Co. v. Lansden, 172 U.S. 534;19 S.Ct., 269; 43 L.Ed., 543. That the Pullman Company would have been liable if its employees had been guilty of negligence, even if in so acting they may be considered as the agents also of the railroad company, is equally free from doubt. Note 20 A.L.R., 139; note 25 L.R.A. (N.S.), 351; 2 C.J., 824, 825, 828.

So, then, if the plaintiff in the same action chooses to sue two persons who may be jointly and severally liable, against either of whom he could have proceeded by separate action, and recovers a verdict against only one of them, the other is necessarily discharged; the verdict standing good against the defendant named. This rule, however, is subject to the exception that where the master or principal is joined with the servant or agent, in an action based solely upon the tort of the servant or agent, and the verdict exculpates the servant or agent and holds the master or principal, the verdict is without support, as has been consistently held.Jenkins v. Southern R. Co., 130 S.C. 180; 125 S.E., 912, and cases cited therein.

It has been suggested that the verdict should have been reformed upon motion of some of the counsel engaged in the case as soon as it was received. The "case" shows that the verdict was received by the Court in the absence of counsel for both sides; neither had the opportunity to have the verdict reformed. But, if all had been present, there certainly was no obligation on the part of counsel for the Southern Railway Company to put his neck in the halter after the jury had given him freedom.

I think therefore that the appeal of the Southern Railway Company should be sustained and the judgment declared void so far as it is concerned.

The Appeal of the Pullman Company. — Upon the motion for a directed verdict, it appears that there was abundant evidence of negligence on the part of the employees of the company to require submission of the case to the jury. It tended to show that the plaintiff, an aged lady, was traveling alone; these facts at the outset required a reasonable degree of attention; she was entitled to notice of the arrival of the train at her destination; the evidence tends to show that such notice was not given; she was entitled at least to a free and convenient exit from the car; the evidence tends to show that the vestibule doors at both ends of the car were closed when she attempted to leave the car; she was entitled to assistance in disembarking by footstool and help; the evidence tends to show that neither was afforded; she was compelled to pass through several coaches seeking an exit, and as she attempted to alight at an open place, she was thrown down by the movement of the train, at a point where no facilities or assistance were supplied. It is insisted that her fall was not a proximate result of the alleged negligence of the Pullman Company. We are of opinion that the sequence of events, beginning with the failure to announce the station, followed by the closing of the doors, the lack of attention, the hasty progress through the coaches, and the sudden movement of the train, was complete, as being the natural consequences, to be anticipated from the prime wrong. The motion for a directed verdict therefore was properly refused.

It is contended that his Honor committed error in applying to the Pullman Company the rule of highest degree of care, which is applicable as between carrier and passenger. It appears to be well settled that so far as the baggage and personal effects of a passenger are concerned, the sleeping car company is not held to the strict rule of the highest degree of care applicable to a common carrier; that as to them the company is not a common carrier (2 Hutch. Carr. § 1130; 5 Elliott, R.R. (3d Ed.), § 2450); but we have encountered no authority which sustains the proposition that as regards its duty to the person of the passenger, or the duties imposed upon the railroad company, as a common carrier of the passenger, which the sleeping car company may have assumed, the same rule should not be applied as to the railroad company. It would be remarkable to hold the carrier to the highest degree of care and its agent to a less degree. Caldwell v. Pullman Co., 132 S.C. 321;128 S.E., 504.

It is contended by the third exception that his Honor committed error in charging as follows: "If again you believe that the Southern Railway Company intrusted any duty which it owed to the plaintiff to the Pullman Company, and if you believe that the employees of the Pullman Company who were intrusted with that duty, if they were so intrusted, and negligently failed to carry out that duty, and that directly brought about injury to the plaintiff, then both would be liable" — upon the ground "that there was no evidence that the Pullman Company contracted to perform any duty beyond the obligation of its own contract to furnish special accommodations, and was liable to the passengers only within the terms of its particular contract."

The third, fourth, and fifth exceptions, under various conditions, raise practically the same contention, that the Pullman Company is not liable to the plaintiff for the acts of its employees while they were assuming to perform duties primarily imposed upon the railroad company in connection with the transportation of the passenger.

There is a faint color for this contention in the opinion of the Court in the case of Campbell v. Seaboard Air Line R.Co., 83 S.C. 448; 65 S.E., 628; 23 L.R.A. (N.S.), 1056; 137 Am. St. Rep., 824, where it is said: "Hence, with respect to those matters embraced in the contract of carriage, which the railroad company depends upon the employees of Pullman Company to perform, such employees [of the Pullman Company, we interpolate] are the agents of the railroad company." The inference sought to be drawn is that they are not therefore, as to such matters, the agents of the Pullman Company. We do not think that this is a necessary or a legitimate inference. That was an action against the railroad company, based upon certain delicts of the Pullman Company's employees, in putting the plaintiff off at a station short of her destination. The railroad contended that the Pullman Company alone was responsible; the Court held that the employees were the agents of the railroad company — very far from holding that they were not also agents of the Pullman Company.

It is a matter of such common knowledge as to come within the judicial cognizance of the Court that the employees of the sleeping car company perform for passengers other services than those directly connected with the special accommodations which the passengers engage. They stand at the steps and assist in carrying baggage and embarking; in furnishing facilities for embarking; in announcing stations and assisting in disembarking. If these are not duties implied in the passenger's contract with such company, as I think they are, they are certainly within the apparent scope of the employment, authorized by the company, for a breach of which the company would be liable.

"Both the railroad company and the sleeping car company are jointly and severally liable for injuries caused to passengers on a sleeping car, through the negligence or wrongs of the sleeping car company's employees in respect to the passenger's transportation." 10 C.J., 1180.

"Indeed most of the authorities go even further and hold that the sleeping car company and its employees, at least as to all matters incident to the carriage except such as relate peculiarly to the sleeping car company's contract with the passenger, and that either or both companies may be liable in a proper case for the negligence or misfeasance of the sleeping car company's employees." 5 Elliott, R.R. (3d Ed.), 171.

As to matters directly connected with the special accommodations engaged, the rule is thus stated by this Court:

In Taber v. Seaboard Air Line R. Co., 81 S.C. 317;62 S.E., 311, among other delicts charged the plaintiff sought damages from a railroad company upon the ground of the refusal of the porter on the Pullman car to make down her berth upon request. The Court said:

"Conceding that the porter was negligent, or even willfully disregardful of plaintiff's request in this matter, the defendant [railway company] is not liable in the absence of evidence connecting it with the special contract of the Pullman Company. The delict, if any, was a breach of duty by the Pullman Company, since it appertained peculiarly to the contract of that company to furnish berth accommodations as distinguished from the defendant's contract of safe and comfortable transportation."

The judgment of this Court should be that the judgment entered against the Southern Railway Company be annulled and that the judgment against the Pullman Company should be affirmed.