Mishoe v. Atlantic Coast Line Railroad Co.

At a former trial of this case there was a verdict and judgment for the plaintiff, and, on appeal to this Court, the judgment was reversed. 124 S.C. 195;117 S.E., 217. On coming on to be tried again, there was a verdict for the plaintiff for the actual damages, and the defendant appealed.

The pleadings are very lengthy, and are fully set out in the case on the first appeal, and will not be here repeated, but, in considering the case, we are adopting the short statement made by the late Mr. Justice Fraser on that appeal:

"The plaintiff was notified by a telegram that his child was sick at home. The plaintiff was in Columbia in attendance upon the Legislature, and his child was sick at his home in Conway. In order to go from Columbia to Conway by rail, it is necessary to go to Chadbourn, in North Carolina, and change cars for Conway. When the train got to Florence, it was two hours late, and the plaintiff was uneasy about making connection at Chadbourn, and made inquiry at Florence. He could learn nothing in Florence about the matter. After leaving Florence, the plaintiff appealed to the conductor to find out for him if the train would be held at Chadbourn. The plaintiff says that at Marion he was informed that the train to Conway had left Chadbourn, and he would have to wait at Chadbourn for a later train, and be delayed several hours; that the conductor told him that, if he was obliged to be at home within a reasonable time, it would be well to get off the train and go across from Marion to Conway by automobile. The plaintiff got off of the train at Marion, and engaged an automobile to take him across to Conway. The automobile broke down on the way. The day was exceedingly cold, and the roads were in a bad condition. The driver of the automobile refused to go any further. The plaintiff succeeded in getting another automobile. Automobile No. 2 broke down, and the plaintiff procured a third automobile to finish the journey. The plaintiff spent hours on the road, and suffered with the cold, and was made sick by the exposure. He did not arrive at home until 8 o'clock at night. It seems that, while the train between Chadbourn and Conway did leave the station at Chadbourn, as reported, the engine was delayed in the yard just after it started, and it took so long to fix it that, after it was fixed, it waited for the train which the plaintiff had left at Marion, and enabled the other passengers for Conway to reach Conway at 3 o'clock, or five hours ahead of the plaintiff. This action is brought for the sickness of the plaintiff, produced by his exposure between Marion and Conway."

In addition to the foregoing statement, it may be added that it was shown at the trial out of which this appeal has arisen that the delay which prevented the respondent from making connection at Chadbourn was due to waiting two hours at Augusta on a train over the Georgia Railroad in order to make the Augusta connection. The train should have left Augusta about 3 o'clock, and it left about 5 o'clock. It should have arrived in Sumter about 7 o'clock, and it arrived there about 9 o'clock.

The testimony was much fuller on the reason for giving the information that the connection would not be made at Chadbourn than appeared at the former trial.

The defendant got off the train at Marion upon receiving the information that the train on which he was traveling would not make connection at Chadbourn, for the reason that the train had already left the last-named station. The testimony clearly shows that such was the fact, and that the information so imparted to the respondent was strictly in accordance with that fact. But something having gone wrong with the engine after the train had left Chadbourn, the train returned to Chadbourn, and got another engine, and went on to Conway, arriving there about 3 o'clock in the afternoon.

That a passenger undertakes to travel on a railroad subject to such delays as are not caused by the negligence or willfulness of the carrier is not questioned. Mulligan v.Railway, 84 S.C. 171; 65 S.E., 1040. Nor is it questioned that a carrier is bound to furnish reasonable means to a passenger for obtaining information, and that, if a passenger suffers damages by reason of the actionable negligence or willfulness of the agents of the carrier in giving false information, the passenger may have his remedy against the carrier.

It is also well settled that evidence of long delay in making scheduled connections resulting in expense and loss of time to a passenger, raises the presumption of negligence, and it is incumbent on the carrier to show that such failure was not the result of negligence. Miller v. Railway, 69 S.C. 125;48 S.E., 99. Mulligan v. Railway, supra. But this is only a presumption, which may be overcome by proof. Tested by these principles, has the respondent suffered any actionable injury from the conduct of the appellant?

The testimony shows that the delay in making the schedule was due to waiting on the train at Augusta, which came over the Georgia Railroad, and was in no way due to the negligence or willfulness of the appellant.

Chadbourn could not be reached in time to make the regular connection at that point, and the information given that the train had already left when the respondent got to Marion was true. The appellant had a right to hold its train to make the connection at Augusta, nor can it be questioned that the railroad company had a right to make its schedule from Chadbourn to Conway.

The question of willfulness is eliminated from the case, and there is no evidence of negligence, and no evidence that false statements were made to the respondent, and, under these circumstances, the respondent has no cause of action against the appellant. We reiterate, without here repeating, the opinion so tersely expressed by the late Mr. Justice Fraser on the former appeal of the case, found at 124 S.C. 207,208; 117 S.E., 217.

A verdict should have been directed for the defendant. The judgment should be reversed and the case remanded to the Circuit Court to enter up judgment in favor of the defendant, under Rule 27 of this Court.

MR. JUSTICE COTHRAN concurs.