Horn v. Southern Ry.

• Decision Date: 03 September 1907
• Citation: 58 S.E. 963,78 S.C. 67
• Parties: HORN et al. v. SOUTHERN RY.
• Court: South Carolina Supreme Court

58 S.E. 963

78 S.C. 67

HORN et al. v. SOUTHERN RY.

Supreme Court of South Carolina

September 3, 1907

Appeal from Common Pleas Circuit Court of Spartanburg County; Klugh Judge.

Action by Mary Louisa Horn and Ben Horn against the Southern Railway. Judgment for plaintiffs. Defendant appeals. Affirmed

Sanders & De Pass, for appellant.

De Pass & De Pass, for respondents.

WOODS J.

The plaintiff Mary Louisa Horn, her husband, John Horn, and her adult sister on March 5, 1905, were passengers from Union to Jonesville on the defendant's train. The action was brought for injuries alleged to have been received by the plaintiff in a fall due to the turning of a stool placed on the ground to aid passengers in alighting.

The plaintiff testified she had several parcels, and asked the conductor to help her when she reached Jonesville; that her husband preceded her in getting off the train with their baby in his arms; that neither conductor nor porter rendered her any assistance; that, when she stepped from the car with a clothes case in one hand, a hat and umbrella in the other the stool turned and threw her to the ground because it was not set in the right place; that the conductor was standing on the ground where the passengers were alighting, saw her fall, and, so far from offering her assistance, actually laughed at her. The conductor testified he had no recollection of the request for assistance; that he did take the arm of the plaintiff as of other women to aid them in stepping off; that the stool was placed in exactly the proper place, but he observed the plaintiff come down the steps looking over at the crowd, and not at the stool; that the plaintiff merely staggered around without falling, and made no complaint whatever. He denied laughing at the plaintiff. His testimony that a number of other passengers had preceded the plaintiff and alighted in safety was not disputed. There was some evidence that the place where the car stopped was not quite level, but this was denied by the conductor.

This statement makes the issues of fact sufficiently clear. The jury found a verdict in favor of the plaintiff for $800. The appeal relates to alleged errors in the charge of the circuit judge. We do not think there is any ground upon which this court can interfere with the judgment.

1. In imposing upon the defendant the burden of proving contributory negligence by a preponderance of the evidence the circuit judge by a verbal slip used language which might be construed to mean that the primary inquiry was whether the defendant had made out the defense of contributory negligence, rather than whether the plaintiff had proved the defendant's negligence as a proximate cause of injury. But at the beginning of the charge, in the clearest language, he had placed on the plaintiff the burden of proving by the preponderance of the evidence the allegation that the negligence of the defendant was a proximate cause producing injury to the plaintiff, and had charged the plaintiff could not recover without discharging this burden. So, taking the instruction on this point as a whole, we do not think it could be inferred the jury were misled.

2. There is also language in the charge, which, standing alone, would bear the meaning that the defendant could not rely on the position that the plaintiff's injury was due entirely to her own negligence, unless it proved that fact by the preponderance of the evidence. But this language was used in the instructions concerning contributory negligence. It would be going too far to infer misapprehension by the jury on this point; for the instruction that the plaintiff could not recover without proving affirmatively by the preponderance of the evidence her injury to have been due to the negligence of the defendant certainly negatived the idea that she could recover unless the defendant assumed and discharged the burden of proving by the preponderance of the evidence the injury to have been due entirely to her negligence. The burden of proving the defendant's negligence as the proximate cause would imply to any reasonably intelligent mind the burden of proving the absence of the plaintiff's negligence as the sole proximate cause. The charge, therefore, does not warrant a reversal on the authority of Kennedy v. So. Ry. Co., 59 S.C. 535, 38 S.E. 169, and Michiner v. Telephone Co., 70 S.C. 525, 50 S.E. 190. If inadvertences like those relied on here are deemed by counsel to be material, they should be called to the attention of the circuit judge at the close of the charge. If they escape the attention of vigilant and learned counsel, this court ought not to infer they were so grasped by the jury as to lead them into error.

3. The defendant submits in the next place the following was a charge on the facts: "Well, now, I instructed you that it was bound to furnish passengers with safe and proper appliances and...