Berley v. Seabd. Air Line Ry

• Decision Date: 28 August 1909
• Citation: 83 S.C. 411,65 S.E. 456
• Parties: BERLEY . v. SEABOARD AIR LINE RY.
• Court: South Carolina Supreme Court

65 S.E. 456

(83 S.C. 411)

BERLEY .

v.SEABOARD AIR LINE RY.

Supreme Court of South Carolina.

Aug. 28, 1909.

1. Cakrieks (§ 277^*—Passengers—Failure to Take up—Damages.

Where a carrier fails to stop to take up a passenger at a flag station, there can be no recovery for any increased injury or suffering arising from the prospective passenger's illness, in the absence of notice thereof to the carrier.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 1082; Dec. Dig. § 277.*]

2. Carriers (§ 277*)—Passengers—Failure to Stop—Mental Suffering.

Where it was not claimed that a carrier's failure to stop at a flag station for a passenger was accompanied by contumely or personal abuse, no recovery for injury to feelings or insult can be had.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 1082; Dec. Dig. § 277.*]

3. Damages (§ 62*)—Reduction of Damages —Failure of Carrier to Stop for Passenger.

For a carrier's failure to stop on flag for a prospective passenger, it is liable for the direct and immediate consequences, but not for resulting exposure unnecessarily incurred by the passenger, or from his own negligence.

[Ed. Note.—For other cases, see Damages, Cent. Dig. § 119; Dec. Dig. § 62.*]

4. Pleading (§ 364*)—Irrelevant and Redundant Matter—Striking Out.

Where a passenger went to a flag station to take a train, which negligently failed to stop for him, an allegation in the complaint for damages that he was "compelled to remain" at such station in a cold wind, and "was compelled to procure a private conveyance to carry him home through the country in the cold wind, " etc., was not subject to a motion to strike as irrelevant and redundant.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 1156; Dec. Dig. § 364.*]

Appeal from Common Pleas Circuit Court of Richland County; Geo. W. Gage, Judge.

Action by W. Q. Berley against the Seaboard Air Line Railway. From a judgment striking out parts of the complaint, plaintiff appeals. Modified and affirmed.

The following is the complaint referred to in the opinion:

"(1) That the defendant, Seaboard Air Line Railway, is a corporation created and existing under the laws of the states of Virginia and North Carolina, and was at the times hereinafter mentioned operating and controlling, as owner thereof, a railroad extending from the city of Columbia, in the county of Richmond, in the state of South Carolina, to the city of Savannah, in the state of Georgia, passing through the counties of Richland and Lexington, in the state of South Carolina, and having stations along said railroad in the counties of Richland and Lexington, where it transacts its business.

"(2) That the defendant is, and was at the times hereinafter mentioned, a common carrier of passengers on and over said railroad for hire between the places hereinafter men-tioned, namely, Swansea, S. C., and Columbia, S. C.

"(3) That section No. 2134 of the Code of Laws of South Carolina expressly provides: 'Every railroad company in this state shall cause all its trains of cars for passengers to entirely stop upon each arrival at a station, advertised by such company as a station for receiving passengers upon such trains, for a time sufficient to receive and let off passengers, ' and section No. 2202 of the Code of Laws of South Carolina also provides that 'each and every act, matter or thing in this chapter declared to be unlawful, is hereby prohibited; and in case any person or persons as defined in this chapter engaged as aforesaid shall do, suffer, or permit to be done, any act, matter or thing in this chapter prohibited or forbidden, or shall omit to do any act, matter, or thing in this chapter required to be done, or shall be guilty of any violation of the provisions of this chapter, such person or persons shall, where no specific penalty is hereinbefore already provided for such violation, forfeit and pay to the person or persons who may sustain damage thereby, a sum equal to three times the amount of damage so sustained, to be recovered by the person or persons so damaged, by suit in any circuit court in this state, where the person or persons causing such damage can be found, or may have an agent, office, or place of business; but in any such case of recovery, the damage shall not be assessed at a less sum than two hundred and fifty dollars. * * * '

"(4) That on the morning of the 25th day of January, 1907, between 4 and 5 o'clock, the plaintiff [who was ill] and desired to return to his home at Lexington, S. C, purchased from the station agent of the defendant at Swansea, a station on the line of defendant's railroad in the county of Lexington and state of South Carolina, a ticket from Swansea aforesaid to the city of Columbia, S. C., which is the most direct route from Swansea to Lexington by rail, and paid said station agent the fare usually demanded and received by defendant for a ticket from Swansea to Columbia, and, before he purchased said ticket, he was assured by said station agent that the regular passenger train of the defendant, which would soon approach Swansea station from Savannah for Columbia, would stop at Swansea upon its arrival there, for all passengers for Columbia to board it.

"(5) That, having purchased said ticket from the station agent of the defendant at the time and place aforesaid, it was the duty of the defendant to stop said passenger train or cars upon its arrival at Swansea station for a time sufficient to receive plaintiff on board of said train, or long enough for plaintiff to get on board thereof; the said Swansea being a regular station on defendant's said line of railroad at which all of its regular passenger cars and passenger trains stopped upon arrival thereat, for the purpose of receiving and letting off passengers, and said station was and is advertised by the defend ant as a station at which its passenger trains, or cars for passengers, would stop upon arrival to receive and let off passengers.

"(6) That, soon after purchasing said ticket from the station agent of the defendant at the time and place aforesaid, the defendant's regular passenger train or train of passenger cars from Savannah to Columbia approached said Swansea station at a rapid rate of speed, but did not stop at said Swansea station upon its arrival there, for the purpose of receiving and letting off passengers, although it advertised that Swansea was a station at which said passenger train, as well as, all of its other regular passenger trains, would stop upon arrival for a sufficient time to receive and let off passengers thereat; but regardless of its duty in that respect, and in utter disregard of the rights of the plaintiff and in violation of the two sections of the Code of Laws referred to in the third paragraph of this complaint, the defendant, through its agents and servants, negligently, recklessly, wantonly...