Cooper v. Atl. Coast Line R. Co

• Court: United States State Supreme Court of South Carolina
• Citation: 59 S.E. 704,78 S.C. 562
• Parties: COOPER. v. ATLANTIC COAST LINE R. CO.
• Decision Date: 04 June 1907

59 S.E. 704
78 S.C. 562

COOPER.
v.
ATLANTIC COAST LINE R. CO.

Supreme Court of South Carolina.

June 4, 1907.

Rehearing Denied Dec. 14, 1907.

1. Appeal — Decisions Reviewable — Order on Motion to Strike Out Pleading.

Under Code Civ. Proc. 1902, § 11, subd. 2, allowing an appeal from an order striking out a pleading or any part thereof, there is no appeal from an order refusing to strike.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 704.]

2. Pleading—Matters of Fact or Evidence —Certainty and Definiteness.

In an action against a railroad by a person injured in leaving a moving train, a complaint alleging that the conductor encouraged and invited plaintiff to get off the train while in motion, is sufficiently certain and definite without setting out the words, conduct, and surrounding circumstances from which the encouragement and invitation are drawn, since facts and not evidence should be pleaded.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 31, 39.]

3. Carriers — Duty to Persons Assisting Passengers—Personal Injuries.

A person who accompanies a passenger onto a train to render her assistance, in conformity with a custom acquiesced in by the carrier, is not a trespasser, and, if the carrier has notice of his intention to disembark, it must hold the train a reasonable time to allow him to leave it.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, § 1242.]

4. Same—Actions—Evidence—Question fob Jury.

In an action against a carrier by one entering a, train to assist a passenger, for injuries sustained in leaving the moving train, evidence held sufficient to take to the jury the question whether the carrier had notice of plaintiff's intention to disembark.

5. Same—Negligence of Plaintiff.

Whether plaintiff was negligent in jumping from a moving train held, under the evidence, to be for the jury.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 1391-1393.]

6. Appeal—Review—Evidence.

Whether or not a verdict is capricious or contrary to the weight of the evidence cannot be determined on appeal.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3928-3934.]

[59 S.E. 703]

Appeal from Common Pleas Circuit Court of Sumter County; R. O. Purdy, Judge.

Action by J. Witherspoon Cooper against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Willcox & Willcox and Mark Reynolds, for appellant.

Lee & Moise, for respondent.

POPE, C. J. This action was commenced by the plaintiff in April, 1903, to recover damages for personal injuries sustained in alighting from defendant's train, caused, as alleged, by the negligence of defendant company in the following particulars: (1) In that the train did not stop long enough to enable plaintiff to accompany his daughter on board and alight therefrom with safety; (2) that the statutory requirement that the company shall cause all of its trains for passengers entirely to stop for a sufficient time to receive and let off passengers was not observed; and (3) that the conductor in charge of defendant's train encouraged and invited the plaintiff to alight. On a former appeal this court overruled the judgment of the circuit court sustaining a demurrer by defendant 69 S. C. 479, 48 S. E. 458. The facts are as follows: On December 28, 1902, plaintiff's daughter, a young girl, wishing to go from Mayesville, her home, to Sumter, S. C, plaintiff bought for her a ticket entitling her to passage. The train was due at Mayesville 'at 9 o'clock p. m. but on the night in question was about an hour late. On its arrival, in order to help his...