Adger v. Blue Ridge Ry. Co.

• Decision Date: 22 March 1905
• Parties: ADGER v. BLUE RIDGE RY. CO.
• Court: South Carolina Supreme Court

50 S.E. 783

71 S.C. 213

ADGER v. BLUE RIDGE RY. CO.

Supreme Court of South Carolina

March 22, 1905

Appeal from Common Pleas Circuit Court of Anderson County; Townsend Judge.

Action by Jane W. Adger against the Blue Ridge Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The following are defendant's exceptions:

"(1) Error of the presiding judge in refusing the defendant's second request to charge, which was as follows: 'The relation of passenger and carrier must exist before the plaintiff can hold the defendant to the strict liability of a carrier. If the plaintiff bought a ticket over the defendant's railroad, not intending to ride upon defendant's train, and in fact did not ride but bought said ticket for the purpose solely of providing transportation for her baggage over defendant's line, I charge you that the defendant is not liable as carrier of passengers, but, if it received the baggage, is liable only as a gratuitous bailee for gross negligence, which the plaintiff must prove. If she has failed to prove such gross negligence, you should find for the defendant.' Specifications: Said request contained a correct principle of law applicable to the case. The establishment of the relation of passenger and carrier, or shipper and carrier, is essential to holding a railroad company to the strict liability of a common carrier. If therefore, the plaintiff bought a ticket over the defendant's railroad, not intending to ride thereupon and in fact did not ride, but bought said ticket for the purpose solely of procuring transportation for her baggage over defendant's line, as matter of law, the relation of passenger (or shipper) and carrier was not created. Under such circumstances, the defendant who received the baggage would be liable only as a gratuitous bailee for gross negligence, which must be proved by the plaintiff.

(2) Error of the presiding judge in charging the plaintiff's first request to charge, which was as follows: 'The jury are instructed that, under the law in this state, railroads are common carriers.' Specification: Whether a railroad company sustains the relation of common carrier to a person is a question of fact, dependent upon the circumstances of each case. It is not a common carrier from the fact simply that it is a railroad company.

(3) Error of the presiding judge in charging the plaintiff's second request to charge, which was as follows: 'The jury are further instructed that, when once a carrier receives either baggage or goods for transportation, he becomes, as it were, an insurer, and can only excuse himself from liability by showing that the loss arose from the act of God or the public enemy.' Specification: A carrier who receives either baggage or goods for transportation is not held to the strict liability of a common carrier, unless it appears that the relation of a common carrier pro hac vice has been established.

(4) Error of the presiding judge in charging the plaintiff's third request to charge, which was as follows: 'The jury are further instructed that, under the law in this state, if they find the defendant company received the trunk in question as a common carrier, and undertook to transport the same, then the question for the jury to solve is not a question of negligence, as in the case of an ordinary bailee, but the sole question is whether the defendant has shown that the damage sustained resulted from any one of the causes which would exempt the carrier from responsibility, to wit, the act of God or the public enemy, or other causes to be hereafter mentioned. The rule is that, in an action against a common carrier, the onus is upon the defendant to show the damage complained of was occasioned by causes which exempt it from responsibility, and that it is not enough for it to prove that it was not guilty of negligence, but it used the utmost care and diligence. If, therefore, the jury find from the evidence, of which they are the sole judges, that the plaintiff delivered a trunk to the defendant as a common carrier, to be transported, and if the defendant so received the same, then the onus is upon the defendant to prove that the loss of the trunk arose from the act of God or the public enemy, or a like cause beyond its control.' Specification: The rule announced only applies when the relation of passenger and carrier is established. The defendant, as it contended, may as a common carrier receive the trunk in the capacity of gratuitous bailee, with the limited liability of that relation. This request is particularly harmful in connection with the first request.

(5) Error of the presiding judge in charging the plaintiff's fourth request to charge, which was as follows: 'The jury are further instructed that the liability of a common carrier attaches as soon as baggage or goods are received to be transported on any part of the road. If, therefore, the jury find from the evidence that the plaintiff delivered her trunk to the defendant as a common carrier, and received a check therefor, the liability of the defendant as a common carrier commenced as soon as such delivery was made.' Specification: Under the circumstances stated, the liability of the defendant as a common carrier did not commence until the plaintiff attained and sustained the relation of passenger or shipper of freight.

(6) Error of the presiding judge in charging the plaintiff's fifth request to charge, which was as follows: 'The jury are further instructed that the purchase of a ticket by a person entitled to travel between two stations creates the relation of carrier and passenger.' Specification: The purchase of a ticket by a person entitled to travel between two stations does not necessarily create the relation of passenger and carrier; certainly not when the passenger has no intention of taking passage upon the cars, as was the case in the present controversy. The relation of passenger and carrier begins when one puts himself in the care of the carrier, or directly under its control, with the bona fide intention of becoming a passenger, and is accepted as such by the carrier. Such acceptance may be implied from circumstances showing that the person has offered himself to be carried. The intention of being carried is essential.

(7) Error of the presiding judge in charging the plaintiff's sixth request to charge the following: 'It [a baggage check] is a delivery and acceptance, the abandonment of all care of the baggage by the passenger, and the assumption of it by the agents of the carrier.' Specification: It is no part of a contract of carriage that the passenger abandons all care of his baggage. Emergencies may arise when his care and attention may preserve it from loss, and this the carrier has the right to take into consideration when the contract is entered into.

(8) Error of the presiding judge in charging the plaintiff's seventh request to charge, which was as follows: 'The jury are further instructed that, under the law of this state, in case of loss or damage to any article or articles delivered to any railroad company for transportation, the initial corporation first receiving the same shall in every case be liable, but may discharge itself from such liability by the production of a receipt in writing for the said articles from the corporation from whom it was its duty to deliver the said article or articles in the regular course of transportation. If, therefore, the jury find from the evidence that the plaintiff delivered her trunk to the defendant for the purpose of transportation to the city of Charleston, and that the defendant was the initial corporation or the corporation first receiving the trunk, then the defendant is liable, unless it discharged itself from such liability by the production of a receipt in writing for the said trunk from the corporation to whom it was its duty to deliver it.' Specification: (a) The law quoted (section 2176, Code of Laws of 1902) applies to freight and not to baggage. (b) The complaint is based upon the loss of the trunk as baggage, and not as freight.

(9) Error of the presiding judge in charging the plaintiff's tenth request to charge, which was as follows: 'The jury are further instructed that the law makes it the duty of common carriers to have an agent at every regular station to receive and take charge of baggage or freight. Such agent or baggage master so placed at the station by the railroad company is held out to the public by it as having authority to make arrangements as to what sort of baggage shall be carried by the railroad company, and as to the shipment of baggage or freight; the railroad company having given him the direction and control and the management of the articles of freight, he is, in the eye of the law, so far as the outside public is concerned, authorized and clothed with the authority to make contracts for the transportation of freight or baggage, and to bind the company in that respect. If, therefore, the jury find from the evidence, of which they are the sole judges, that the plaintiff delivered her trunk to the baggage master of the defendant at the station of Walhalla, S. C., and that he received the same, agreeing to deliver it

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