Talbert v. Charleston & W.C. Ry.

Citation55 S.E. 138,75 S.C. 136
PartiesTALBERT v. CHARLESTON & W. C. RY.
Decision Date07 September 1906
CourtUnited States State Supreme Court of South Carolina

Appeal from Common Pleas Circuit Court of Edgefield County; Gage Judge.

Action by W. M. Talbert against the Charleston & Western Carolina Railway. Judgment for plaintiff. Defendant appeals. Affirmed.

S. J Simpson and Sheppard Bros., for appellant. J. Wm. Thurmond Jas. H. Tillman, and S. M. Smith, Jr., for respondent.

GARY A. J.

This is an action for damages, alleged to have been sustained by the plaintiff through the negligence and willfulness of the defendant; and it is the second time it has been before this court on appeal (72 S.C. 137, 51 S.E. 564). The allegations of the complaint are substantially as follows That the plaintiff went into the ticket office of the defendant at McCormick, S. C., for the purpose of buying a ticket and becoming a passenger on the train of cars that had stopped at said station; that the agent was not in his office, but the conductor of said train was there, to whom plaintiff made known his business, whereupon the conductor replied: "The agent is not in. I am going. You had better get on the train," and seemed in a hurry; that they went out, and the conductor directed him to get on the train. The alleged acts of negligence and willfulness on the part of the defendant, according to plaintiff's analysis of the complaint, are: "First, absence of a ticket agent; second, the act of the conductor in signaling the train to start when plaintiff was obviously in the act of boarding it, knowing it would start before he could board it; third, the conductor's act in inviting plaintiff to board the train, and in not holding, but signaling it forward before he could board it; fourth, the conductor's failure to help plaintiff on the train, as he saw plaintiff had but one hand; fifth, in allowing a trunk to be and remain so near the track as to endanger persons getting on and off the train; sixth, in moving the train rapidly while plaintiff was in a perilous position, and throwing him against the ground, and then moving away from him, leaving him injured without giving him any attention." The complaint is set out in full in 72 S.C. 137, 51 S.E. 564. The jury rendered a verdict in favor of the plaintiff for $2,750, and the defendant appealed.

The first question that will be considered is whether there was error in refusing the motions for nonsuit and a new trial, on the ground that there was an entire failure of testimony tending to sustain the allegations of negligence. Under the ruling of this court upon the former appeal, the first of the alleged acts of negligence is eliminated from consideration. There was testimony, however, tending either positively or inferentially to establish at least some of the other acts of negligence, and the exceptions raising this question are overruled.

1. The next question that will be considered is whether there was error in refusing the motions for nonsuit and new trial, on the ground that there was no testimony whatever tending to show willful misconduct on the part of the defendant. Apart from the general trend of the testimony indicating a disregard of the plaintiff's rights, we would call special attention to the following testimony of E. L. Foster the conductor in charge of said train, to wit: "Q. Did you know that this gentleman was a one-armed man when he spoke? A. I did not know the man. I did not even look up. All my conversation was with that man while I was writing. I did not look around to see who he was, because I did not care. Q. You knew you did tell him to go ahead and get on? A. Yes, sir. *** I told him to get on the train, that it did not cost any more, and that we were not going to stay there all day." This conversation took place in the ticket office. The appellant, however, contends that this testimony does not tend to show willfulness, for...

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