Latour v. Southern Ry.

• Decision Date: 08 May 1905
• Citation: 51 S.E. 265,71 S.C. 532
• Parties: LATOUR et al. v. SOUTHERN RY.
• Court: South Carolina Supreme Court

51 S.E. 265

71 S.C. 532

LATOUR et al. v. SOUTHERN RY.

Supreme Court of South Carolina

May 8, 1905

Appeal from Common Pleas Circuit Court of Greenwood County; Leroy F Youmans, Special Judge.

Action by Rosa Latour and her husband against the Southern Railway. Judgment for defendant, and plaintiffs appeal. Reversed.

Sheppards & Grier, for appellants. T. P. Cothran, for respondent.

POPE C.J.

The plaintiff Mrs. Latour seeks to recover $1,000 damages of the defendant railway company on account of the negligent careless, wanton, and willful conduct of the defendant, its agents and officers, in the matter of the treatment of the plaintiff, who was a passenger on one of its passenger trains on the 8th December, 1902. The action came on for trial in the court of common pleas for Greenwood county before Special Judge Youmans and a jury. After full testimony and the charge to the jury, the jury rendered a verdict in favor of the defendant, on which judgment was duly entered. The plaintiff now appeals to this court on the following exceptions:

"(1) It was error in his honor to charge the jury as follows: 'Now, gentlemen, as to making connections with trains, railroad companies do not guaranty the making of connections. If they sold you a ticket and guarantied connection, then you would have a cause of action; but they do not guaranty connections,' the error being:

(a) In so charging the jury, his honor gave them an entirely incorrect idea of the law of this case, and led the jury to believe that unless the company had guarantied connections at Greenville or Atlanta the plaintiff had no case whatever. The law is that a railway company is charged with the duty of running its train according to schedule time, and can only be excused from so doing by accident, or from causes which reasonable care could not provide against.

(b) In so charging the jury, his honor entirely eliminated from this case the testimony of plaintiff that the agent of the company represented that she would make connection at Greenville at the time of the sale of said ticket; it being respectfully submitted that a railway company is bound by the representations of its ticket agent to the purchaser of a ticket, made at the time of the sale of the ticket.

(c) It is alleged in the complaint that at the time of the purchase of the ticket defendant represented to plaintiff that she would connect at Greenville, upon which point testimony was offered by plaintiff and her witnesses, and in charging that defendant did not guaranty connections his honor entirely eliminated this testimony and these allegations from the case, and further charged directly on the facts of the case by telling the jury that the defendant did not guaranty connections, in violation of the Constitution, which prohibits a circuit judge from charging on the facts of the case.

(d) If it be true, as alleged in the complaint and as testified to by plaintiff's witnesses, that defendant did represent to plaintiff at the time of the purchase of the said ticket that she would make close connection at Greenville, it is submitted that this in law amounts to a guaranty which would be binding on the defendant, and his honor had no right to instruct the jury that defendant did not guaranty connections, and in so doing, his honor, in addition to charging on the facts of the case, in violation of the Constitution, which forbids him from charging on the facts, ignored these allegations and the testimony, and also placed an entirely erroneous construction on said allegations and said testimony, the same amounting in law to a guaranty of connection; and his honor should not have submitted this question to the jury.

(e) The defendant was certainly bound by the representation of its agent, and his honor committed no error to charge that it did not guaranty connections, and further instructed the jury that railroads do not guaranty connections.

(2) It is further submitted that his honor further erred in charging the jury as follows: 'The other side claims that she abandoned her trip' because:

(a) In so charging the jury, his honor charged on the facts of the case, and stated the testimony to the jury, in violation of the Constitution, which prohibits a circuit judge from charging on the facts, because the answer of the defendant was simply a general denial, but in the testimony of the defendant's witnesses one of the witnesses testified that plaintiff had abandoned her trip.

(3) His honor erred in charging the jury as follows: 'She says, if she had been permitted to remain in there, she would have made connection. She says it was all caused by the carelessness, negligence, willful and wanton misconduct of the servant in charge of this train of cars, in ordering her to vacate her seat and take passage in a car that went by Anderson and Seneca. You see what she says it was all caused by?' This being a charge on the facts of the case, in violation of the Constitution, which prohibits a circuit judge from charging on the facts of a case, and his honor in charging the jury, in the language herein mentioned, in quoting the testimony to the jury, was charging the jury on the facts of the case, and repeating to the jury the testimony in the case, in violation of the Constitution which prohibits a circuit judge from charging on the facts of the case, or from repeating the testimony to the jury in his charge.

(a) In so charging the jury, his honor committed further error, in that he limited recovery to a failure to make connection at Seneca; whereas this is not the only element in said cause of action, and is not the only cause of grievance against said defendant, it being respectfully submitted that one of the elements of said cause of action, and one cause of grievance against the said defendant, was its authorized diversion of the plaintiff from the route indicated by said ticket.

(b) It is submitted that plaintiff had a right to have submitted to the jury the question of her damage for being carried by Anderson and Seneca instead of by Greenville, and whether or not she would have made connection by going by Greenville is not controlling in the case, because, if her ticket called for Greenville, it was the duty of defendant to carry her there, and its failure so to do gives a good cause of action for damages against the defendant, although, as a matter of fact, it may have carried her to another point where the same connection would have been made; and, in charging the jury as hereinabove complained of, his honor entirely eliminated this element from the case, and makes the whole cause of action depend on failure to make connection.

(4) It was error in his honor to charge the jury as follows 'Now, gentlemen, negligence is generally said to be the want of due care.' A railroad is required to exercise care with its passengers. It takes their money and agrees to transport them, and is bound to exercise ordinary care, because:

(a) A railroad company carrying passengers is required to exercise the highest degree of care known to the law, and it is not sufficient that they exercise only ordinary care.

(b) A common carrier cannot discharge itself from liability to a passenger by showing that it exercised towards its passenger ordinary care, and his honor committed error in instructing the jury that all that was required of the defendant in this case was to exercise ordinary care.

(5) His honor further erred in charging the jury that all that was required of the railway company was to exercise such care as a man of ordinary prudence would do, and in making the test that of a man of ordinary prudence or an ordinarily prudent man, it being respectfully submitted that a common carrier of passengers is required to exercise a much higher degree of care towards its passengers than is required of a man of ordinary prudence or an ordinarily prudent man.

(6) His honor committed error in charging the jury that the burden of proof was on the plaintiff to show negligence, it being respectfully submitted, in a case of this kind of injury to a passenger, whenever injury is shown at the hands of the carrier, the law presumes negligence, and the burden of proof is then shifted, and the defendant is required to show that it was not negligent in causing the injury, or with reference to the matters complained of as producing the injury; and his honor erred in not so instructing the jury, and in charging that the burden of proof is on the plaintiff throughout to prove every allegation of said complaint, whereas his honor should have instructed the jury that if they believed from the testimony that plaintiff was a passenger, and while in the custody of the defendant as a passenger received injury at the hands of the defendant, or from any agent or instrument under the control of the defendant while a passenger, the law would presume negligence, and, unless defendant overcomes this presumption by a preponderance of the testimony, plaintiff would be entitled to a verdict.

(7) His honor further committed error in charging the jury as follows: 'I have listened with great care to this testimony. It has, while not extensive, covered considerable scope. Starting here, the main trouble seems to be, where does that ticket read? The ticket was lost'--the same being a charge on the facts of the case, in violation of the Constitution of

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