Best v. D.C. Electric St. Rt

• Decision Date: 28 February 1910
• Citation: 85 S.C. 82,67 S.E. 1
• Court: South Carolina Supreme Court
• Parties: BEST v. COLUMBIA ELECTRIC ST. RT., LIGHT & POWER C.O *&dagger

67 S.E. 1

(85 S.C. 82)

BEST

v.COLUMBIA ELECTRIC ST. RT., LIGHT & POWER C.O *†

Supreme Court of South Carolina.

Feb. 28, 1910.

1. Damages (§ 206^*) — Physical Examination of Person Injured.

The court has no power to require a plaintiff suing for personal injuries to submit to a physical examination by defendant's physicians, or by physicians appointed by the court.

[Ed. Note.—For other cases, see Damages, Cent. Dig. § 531; Dec. Dig. § 206.*J

2. Trial (§ 296*)—Instructions—Error Cured by Other Instructions.

In an action for injuries to a passenger by the sudden starting of the car as she was alighting, where the court instructed that it was the duty of the carrier to exercise the highest care consistent with its duties of conveying passengers to avoid injuring them, and, on their failure to do so, they would be liable, it was not error to instruct that the carrier was required to stop its cars a sufficient time to allow passengers to alight, and to see that they had actually done so.

[Ed. Note.—For other cases, see Trial, Dec. Dig. § 296.*]

3. Trial (§ 252*)—Instructions—Evidence.

In an action for injuries to plaintiff, a passenger, by the sudden starting of the car as she was alighting, where the testimony tended to show that she was dilatory in alighting because she was assisting her invalid sister, that she had one foot on the running board and one on the ground, and her hand on the stanchion, when the conductor signaled the train forward, and that he knew these facts and was actually looking at her when he gave the signal, an instruction that it was the duty of the carrier to stop its cars a sufficient time to allow passengers to alight and see that they had done so was applicable to the case.

[Ed. Note.—For other cases, see Trial, Dec. Dig. § 252.*]

4. Damages (§ 215*)—Action for Injuries— Trial—Instructions.

In an action for injuries to plaintiff, a passenger, by the sudden starting of the car as she was alighting, where the testimony tended to show that she had one foot on the running board and the other on the ground and her handon the stanchion when the conductor signaled the train forward, and that he knew these facts and was actually looking at her when he gave the signal, it was proper to refuse an instruction that there was no evidence to support a verdict for punitive damages.

[Ed. Note.—For other cases, see Damages, Dec. Dig. § 215.^2-*]

Woods, J., dissenting.

Appeal from Common Pleas Circuit Court of Richland County; J. C. Klugh, Judge.

Action by Clara Best against the Columbia Electric Street Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Barron, Moore & Barron and R. B. Herbert, for appellant.

Nelson, Nelson & Gettys and Melton & Belser, for respondent.

GARY, A. J. This is an action for damages, alleged to have been sustained by the plaintiff, through the wrongful acts of the defendants, which are thus set out in the complaint: "That on or about the 23d day of September, 1907, the plaintiff with her then invalid sister was received by defendant as a passenger on one of the cars of the defendant company at the said company's transfer station, in order to be transported thereon to the intersection of Richland and Gates streets, and the plaintiff paid the regular charge of fare therefor. That the conductor in charge of said car was informed that the plaintiff and her sister desired to alight from said car at said intersection of Richland and Gates streets, and caused the said car to be stopped at said place, whereupon plaintiff helped her invalid sister to alight, and, with all reasonable dispatch, attempted to alight from said car herself, when the conductor and motor-man on said car, the agents and servants of defendant, willfully, wantonly, carelessly, and negligently caused said car to be suddenly moved forward and on its way without any warning whatever to the plaintiff, and before plaintiff could alight, and while she was in the act of so doing, and caused the plaintiff to be thrown violently to the ground, inflicting serious injuries upon the plaintiff, as hereinafter set forth." The defendant denied these allegations, and set up the defense of contributory negligence. The jury rendered a verdict in favor of the plaintiff for the sum of $3,500.

The defendant appealed upon exceptions, and, as stated by the appellant's attorneys, the first question to be determined is: "Has the circuit court the power to require a plaintiff suing for personal injury to submit to a physical examination by defendant's physicians, or by physicians appointed by the court?" There is no difference in principle between the case under consideration and that of Easier v. Railway, 60 S. C. 117, 38 S. E. 258, in which the court says: "The remedy provided by the Code for taking testi mony before trial of the parties to the action in behalf of the adverse party is exclusive, and supersedes all remedies existing at the time of its adoption as hereinbefore stated. There is no statutory provision in this state empowering the court to order the physical examination of such a party."

The next question is presented by the following exception: "In charging the jury as follows: 'Among the duties of a carrier of passengers, whether it be a street car company or any other kind of carrier of passengers, is bound to exercise, is that it shall stop for a long enough time to allow passengers safely to get on board of the car when they offer in a proper way to become passengers, and having received them as passengers, when they have arrived at their destination, to stop long enough to permit them safely to alight, and connected with that duty to exercise the highest degree of care, a part of that duty; indeed, it is the duty of the servants of the company who are in charge of carrying passengers to be vigilant, to be watchful, and to ascertain, by the exercise of the care which the law requires them to exercise, whether the passengers have safely gotten on board, and whether they have alighted in safety from the car'—the error being that by such instruction the defendant was required, not only to stop its cars a reasonable time, but to see that passengers desiring to do so actually had gotten on and off the cars, thus imposing a higher duty on defendant than is required by law." Immediately preceding that portion of the charge set out in the exception, his honor, the presiding judge, charged the jury as follows: "It is the duty of the street car company, as any other carrier of passengers, to exercise the highest degree of care that is consistent with the performance of its duty of conveying passengers in order that the passengers may not suffer injury; and, if the company fails to exercise the highest degree of care consistent with the performance of its duty, and the passenger suffers injury by reason of such failure, then that is an injury due to the negligence of the defendant, and the defendant is responsible for the result of its negligence."

We do not construe the charge in the exception as embodying the separate and distinct proposition that "the defendant was required, not only to stop its cars a reasonable time but to see that passengers desiring to do so actually had gotten on and off the cars, " but that, when the charge is considered in its entirety, it means that this duty was only imposed on the defendant when "the exercise of the highest degree of care that is consistent with the performance of its duty of conveying passengers, in order that the passengers may not suffer injury, " requires such action on the part of its conductor. The appellant relies upon the case of Shealey v. Railway, 67 S. C. 61, 45 S, E. 119, in which the ruleis...