Campbell v. Seaboard Air Line Ry.

• Decision Date: 02 October 1909
• Citation: 65 S.E. 628,83 S.C. 448
• Parties: CAMPBELL et al. v. SEABOARD AIR LINE RY.
• Court: South Carolina Supreme Court

65 S.E. 628

83 S.C. 448

CAMPBELL et al. v. SEABOARD AIR LINE RY.

Supreme Court of South Carolina

October 2, 1909

Appeal from Common Pleas Circuit Court of Bamberg County; John S Wilson, Judge.

Action by Emma J. Campbell and another against the Seaboard Air Line Railway. Judgment for plaintiffs, and defendant appeals. Affirmed.

S. G Mayfield, J. A. Wyman, and Syles & Syles, for appellant. G B. Timmerman and J. F. Carter, for respondents.

WOODS J.

The facts in this case are substantially the same as those in Entzminger v. Ry. Co., 79 S.C. 150, 60 S.E. 441. The testimony on the part of the plaintiff tended to prove the following facts: Mrs. Campbell boarded the passenger train of the defendant, Seaboard Air Line Railway, on the night of 24th December, 1906, at Jacksonville, Fla., and took a berth on the Pullman sleeping car. Knowing that the train would reach Denmark, her destination, in the early morning, Mrs Campbell asked the conductor of the train, as well as of the Pullman car, to wake her in time to dress and leave the car at Denmark. She was awakened by the porter of the Pullman car very early in the morning, while it was still dark, and was told that Denmark was the next station, and, when the train stopped, she was put off at Govan, a station seven miles from Denmark. Mrs. Campbell perceived the mistake just as the train was moving off, and gave the alarm to a fellow passenger, Entzminger, who was in the same predicament. He rushed forward, and cried out to the porter standing on the steps to stop the train. W. A. Hays, who was acting as station agent, attempted to stop the train by signaling with his lantern. The Pullman conductor perceived the situation, and tried to give the alarm by pulling the bell cord, and the Pullman porter told the conductor of the train of the mistake as soon as he could get to him when the train had gone about three quarters of a mile. Being thus left at Govan, Mrs. Campbell and Entzminger hired a conveyance and drove through the country to Denmark. The day was very cold, and Mrs. Campbell was made sick by the exposure. The action is for actual and punitive damages resulting from her sickness and suffering. The verdict and judgment was for the plaintiff, and defendant appeals.

On the call of the cause for trial defendant's counsel moved to strike the cause from the calendar on the ground that the complaint does not contain the proper indorsement, in that the nature of the issue, and the docket upon which the same should be placed, is not indorsed thereon. The exception alleging error in the refusal of this motion cannot be considered, for the reason that there is nothing in the record to show that the complaint was not properly indorsed.

The refusal of the circuit judge to withdraw from the jury the cause of action for punitive damages by ordering a nonsuit or directing a verdict was in accordance with the opinion and judgment of this court in Entzminger v. Railway Company, supra, on similar facts, and the point needs no further consideration. It is important to observe, however, that in that case the liability of the defendant for compensatory damages was admitted.

There was no error in refusing to instruct the jury that the recovery must be limited to $2, the sum paid by the plaintiff for the conveyance from Govan to Denmark. It is true the plaintiff would not be entitled to recover damages for the suffering resulting from the drive through the country, if by the exercise of due care she could have reached her destination without the exposure. Carter v. Railway Company, 75 S.C. 355, 55 S.E. 771; Jones v. Telegraph Co., 75 S.C. 208, 55 S.E. 318; Key v. Telegraph Co., 76 S.C. 301, 56 S.E. 962; Berley v. Railroad Company, 83 S.C. 411, 65 S.E. 456; Shearman & Redfield on Negligence, § 741; Indianapolis, etc., R. R. v. Birney, 71 Ill. 391; Georgia R. R., etc., v. Eskew, 86 Ga. 641, 12 S.E. 1061, 22 Am. St. Rep. 490; International, etc., R. R. v. Addison, 100 Tex. 241, 97 S.W. 1037, 8 L. R. A. (N. S.) 880. Had the defendant requested a charge to that effect, it would have been error to refuse it. Indeed, it is by no means clear that there was any evidence tending to show that the plaintiff was warranted in incurring the exposure of the long ride on a bitter cold day without sufficient wraps. There was a lodging house at Govan where she might have waited for the next train, or at least until she could have procured wraps to protect her from the cold. But if it be assumed that the exposure was unnecessary and taken without due care, in view of the admission of damages to the amount of $2, and of the evidence warranting a recovery for punitive damages, the circuit judge could not properly instruct the jury, as requested by defendant's counsel, that the recovery must be limited to $2. The plaintiff under the evidence had a right to have submitted to the jury the question of punitive damages in connection with the admitted damages.

The remaining question made by the objections to the testimony by motion for nonsuit, and by the request to charge, is whether the Pullman company was solely liable for all damages suffered by the plaintiff, to the exemption of the defendant railway company. A railroad company is not relieved of any of the duties which it owes to a passenger by reason of the passenger making a separate contract with a sleeping car company for special accommodations. The sleeping car company may by its...