Geddings v. Atlantic Coast Line R. R.

June 4, 1912. 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 defendants.

The allegations contained in the second, third and fourth paragraphs of the complaint are material to the questions involved, and will be reported.

The defendants denied each and every allegation of the complaint.

The jury rendered a verdict in favor of the plaintiff, for $3,000 actual damages and $2,000 punitive damages, against the Atlantic Coast Line Railroad Company; and the said defendant appealed upon exceptions, which will be reported.

The defendants made a motion, to strike out the words in the complaint, which we have italicized, but the motion was refused, and this constitutes the first assignment of error.

The plaintiff is required to specify, in his complaint, the grounds upon which he bases his cause of action for negligence; also, the grounds upon which he bases his cause of action for punitive damages.

The italicized words were intended to allege, a reckless disregard of the rights of the traveling public, at the said place, in throwing the cross arms from the train, from which the law imputes malice, towards the plaintiff, or any other person thereby injured. The fact that the right of way where the injury was sustained, was constantly, and with the knowledge and consent of the appellant, traveled by the public, tends to show that it was recklessness, to throw the cross arms from the train at that point. But even if such words were erroneously allowed to remain in the complaint, the exceptions raising this question cannot be sustained, as it has not been made to appear that such error was prejudicial.

It is conceded by the appellant's attorneys, that the exceptions assigning error on the part of his Honor, the presiding Judge, in permitting the introduction of testimony, to prove the italicized allegations, cannot be sustained, in case this Court sustains the Circuit Court in refusing to strike out the italicized words.

The next question for consideration is, whether there was any testimony tending to show, that the plaintiff was entitled to punitive damages.

There was testimony tending to sustain the allegations of the complaint, in this respect.

The next question which will be considered, is presented by the eighth exception.

It is only necessary to refer to the case of Tolleson v.Ry., 88 S.C. 7, to show that this exception cannot be sustained. In that case, the Court uses this language: "Not only is the conscious invasion of the rights of another, in a wanton, wilful, and reckless manner, an act of wrong, but that the same result follows, when the wrongdoer does not actually realize that he is invading the rights of another, provided the act is committed in such a manner, that a person of ordinary reason and prudence would say, that it was a reckless disregard of another's rights."

The tenth exception raises the next question that will be considered.

It is the duty of a railroad company, to load and unload its freight, and in the present case, the appellant could not escape liability, by delegating such duty, to the telegraph company.

We have so recently discussed a similar question, that we deem it only necessary to cite the case of Reed v. Ry.,75 S.C. 162, 55 S.E. 218, to show that this exception cannot be sustained.

The last question to be determined, is raised by the eleventh exception.

There was other testimony of negligence, besides the failure of the conductor to keep a proper lookout. Unloading the cross arms at a point traveled by the public, while the train was running at a rapid rate of speed, tended to show a reckless disregard of the rights of the public, and of the plaintiff.

Judgment affirmed.

MR. JUSTICE WOODS did not sit in this case.