Brewer v. Atlantic Coast Line R. Co.

• Decision Date: 29 March 1929
• Docket Number: 12625.
• Parties: BREWER v. ATLANTIC COAST LINE R. CO. et al.
• Court: South Carolina Supreme Court

147 S.E. 596

149 S.C. 454

BREWER v. ATLANTIC COAST LINE R. CO. et al.

No. 12625.

Supreme Court of South Carolina

March 29, 1929

Appeal from Common Pleas Circuit Court of Florence County; Wm. H Grimball, Judge.

Action by Gary H. Brewer by J. K. Brewer, his guardian ad litem against the Atlantic Coast Line Railroad Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

F. L Willcox, of Florence, for appellants.

D. Gordon Baker, of Florence, and L. M. Gasque and A. F. Woods, both of Marion, for respondent.

STABLER J.

This is an action for damages for personal injuries to the plaintiff alleged to have been caused by the joint and concurrent negligence and recklessness of the defendants in certain particulars named in the complaint.

It appears that the plaintiff, Gary H. Brewer, at the time almost sixteen years of age, was placed by his father, J. K. Brewer, on February 25, 1925, in the Saunders Memorial Hospital in Florence, where he remained until the evening of March 15. During that time he was treated for some kidney trouble, and also had an operation for the removal of a growth from his bladder. On the evening of March 15, the plaintiff having "run no temperature" on that day, his physicians thought it safe for him to return to his home near Nichols, a regular station on the branch of the Atlantic Coast Line Railroad between Florence and Wilmington. Dr. Herlong, one of the physicians at the hospital, took plaintiff to the station at Florence, secured for him a ticket from that point to Nichols, and assisted him in getting on the train.

The complaint alleges that "when the train upon which plaintiff was a passenger reached Nichols, and the conductor of the train, the defendant, Bartow L. Gilbert, descended therefrom, plaintiff's father informed him that he had a sick boy on the train who desired to get off at Nichols, but the conductor stated that he had no such passenger aboard for Nichols, and immediately ordered the train ahead, and in response thereto the train moved off, while plaintiff was trying to leave the train, without affording plaintiff reasonable time to disembark and at such a rapid rate of speed that plaintiff could not alight therefrom in safety."

It is further alleged that the plaintiff, after the train left Nichols, sought out the conductor, and told him that he desired to get off at Nichols; that he was in a very weakened condition as a result of a surgical operation; that he was unable to walk back to Nichols, and that it would be necessary to back the train to that point for him to get off, but that the conductor refused to do so, and stopped the train and put the plaintiff off in Lumber River swamp about three-fourths of a mile from Nichols. It is also alleged that the night was very cold, and that plaintiff in his feeble condition was forced to make his way back to Nichols as best he could, which he finally accomplished, with much painful effort and intense physical and mental suffering, partly by walking and partly by crawling on his hands and knees; that, as a result of the exposure and ordeal through which he passed, he was confined to his bed for approximately four weeks, and suffered great physical and mental pain, it being necessary that he be kept under the influence of anodynes in order to alleviate his suffering.

The defendants, answering, denied the material allegations of the complaint, and pleaded contributory negligence on the part of the plaintiff.

The case was tried before his honor, Judge Grimball, and a jury, at the November, 1927, term of the court of common pleas for Florence county, and a verdict was given for the plaintiff for actual damages in the sum of $7,500. The defendants thereupon made a motion for a new trial upon the grounds that the verdict was contrary to the weight of the evidence, and that the damages allowed were excessive. This motion was overruled by the court. The defendants now appeal by several exceptions, charging the trial judge with having committed error in giving certain instructions to the jury, in refusing to charge certain of defendants' requests, and in refusing to grant a new trial on the grounds stated.

At the request of plaintiff's counsel, the court charged the jury as follows:

"If a passenger is sick, infirm, handicapped by physical disability, or there are peculiar circumstances, either of which should be reasonably apparent to the railroad company, or of which it has notice, it then becomes its duty to render such assistance to the passenger as is reasonably necessary under the circumstances, the railroad company being bound to render reasonable assistance to a passenger whose inability to take care of himself is apparent to the railroad company or has been made known to it." It is not contended that this charge is not a correct abstract proposition of law (Horn v. Southern Railway, 78 S.C. 67, 58 S.E. 963); the objection made is that there was no testimony from which the jury might infer that the conductor had notice of plaintiff's enfeebled condition or that such condition was reasonably apparent to him, and that the charge tended to indicate to the jury the opinion of the trial judge as to the facts to the prejudice of the defendants.

The conductor testified that there was nothing in plaintiff's appearance that would indicate he was suffering from any physical ailment or trouble; the Pullman conductor testified to the same effect. The testimony is undisputed, however, that plaintiff had been in the hospital for more than two weeks; that he had been ill for some time before he was sent there; that he had been operated upon; and that he had been running temperature up to the day that he was sent home. Dr. Herlong, who was his physician at the hospital, and who put him on the train, testified that his weakened condition was apparent to any one seeing him. The father of the plaintiff testified that he gave notice to the conductor, upon the arrival of the train at Nichols, that he was expecting his son upon that train from the hospital at Florence. There is also testimony that the plaintiff himself notified the conductor, after the train had left Nichols, of his physical condition. We think that, in view of the testimony, the instruction complained of was properly given by the court.

The court also made the following charge, embodied in plaintiff's fifth request:

"If the carrier can with safety discharge his passenger at the point of destination, such passenger has the right to such action; and if from any cause and in a reasonable distance from such station that has been passed without the passenger having been afforded an opportunity to alight at his destination such omission is discovered, it is the duty of the carrier to return such passenger to that destination. It will not be excused because it is inconvenient or troublesome; it will only be excused upon the proof of some controlling exigency, and the burden of such proof is upon the carrier the moment the passenger proves that he had the right of passage to a certain point and a compliance on his part with ordinary care, and that such point of destination was passed by the carrier without giving the passenger on opportunity of getting off then."

The substance of the appellants' objection to this charge is that all of the testimony tended to show that ample opportunity was given the plaintiff to disembark at his destination in safety, and that his failure to get off was due to his own act in attempting to...