Durst v. Southern Ry. Co.

• Decision Date: 10 December 1924
• Docket Number: 11629.
• Citation: 125 S.E. 651,130 S.C. 165
• Parties: DURST ET AL. v. SOUTHERN RY. CO. ET AL.
• Court: South Carolina Supreme Court

125 S.E. 651

130 S.C. 165

DURST ET AL. v. SOUTHERN RY. CO. ET AL.

No. 11629.

Supreme Court of South Carolina

December 10, 1924

Appeal from Common Pleas Circuit court of Richland County; Wm. H Townsend, Judge.

Action by Mrs. George W. Durst, Jr., and husband, against the Southern Railway Company and another. Judgment for plaintiffs against defendant Railway Company, and it appeals. Reversed and remanded.

Fraser and Watts, JJ., dissenting.

Frank G. Tompkins, of Columbia, for appellant.

Melton & Belsen, of Columbia, for respondents.

COTHRAN J.

Action by Mrs. George W. Durst, Jr., with whom her husband was joined as plaintiff, for damages on account of alleged personal injuries received by her while a passenger upon the train of the defendant company, caused by the negligence of the defendant Williams, flagman on the train.

It appears from the undisputed evidence that the immediate injury to Mrs. Durst happened in this way: Above the aisle of the car, about midway, there was a large kerosene lamp, which rested in a bracket attached to the ceiling; it was held in place by a catch; on the trip, at night, the lamp began to smoke, and the flagman was sent for; in attempting to detach the lamp from the bracket or to correct the smoking, he allowed the lamp to slip from his hands, and in falling it struck the head of Mrs. Durst, fell on her lap, and thence to the floor; the smoking wick was extinguished without further damage than to the clothes of Mrs. Durst; the lamp did not explode. Mrs. Durst continued on to her destination Batesburg, where she stayed for 3 days, returning to Columbia, and thence to her home in Charleston. She was in a delicate condition at the time, and asserts that the blow and excitement caused great nervousness and suffering, which eventuated in hospital treatment and a miscarriage, which occurred in March, 1922, after the accident in December.

The circuit judge in his charge eliminated the matter of punitive damages. The jury rendered a verdict in favor of the plaintiff for $4,000. It does not distinctly appear in the record whether this verdict was against the railway company alone, or against the railway company and in favor of the codefendant flagman, although counsel for both sides have argued the case as if it had been against the railway company alone, and we will assume that such was the case.

It will not be necessary to consider any of the exceptions other than that portion of the 12th, which assigns error to the circuit judge in charging that the jury could find a verdict against the railway company alone. From his ability and learning it must be assumed that the circuit judge was familiar with the established rule in this state that in an action against the master and servant jointly based solely upon the negligence of the servant, a verdict against the master alone will not be allowed to stand. Sparks v. Railroad Co., 109 S.C. 145, 95 S.E. 344; Jones v. Railroad Co., 106 S.C. 20, 90 S.E. 183; Sparks v. Railroad Co., 104 S.C. 266, 88 S.E. 739. He specifically charged the jury:

"If the lamp in question was overturned and fell in consequence of, and as a proximate result of, the failure of the defendant company to use such care, it would be responsible to plaintiff for any injuries, if any there were, thereby occasioned to her, regardless of whether or not the defendant Williams was also negligent in handling the lamp. * * * If however Williams was not negligent in handling the lamp, and did not negligently cause its fall, he would not be liable to plaintiff for any damages. If, however, the company was negligent in failing to use proper care to keep the lamp secure and in causing it to be overturned or to fall, through some agency other than Williams, then under such circumstances the company alone would be liable to Mrs. Durst, while Williams would not be."

Over the objection of the defendant Railway Company, the circuit judge allowed other evidence than that tending to sustain the specific act charged to the flagman, which evidence tended to show that the lamp was out of date, that it should have been fixed long ago, and that the fall was due to the negligence of some other servant than the flagman.

It is absolutely clear, therefore, that the circuit judge, in charging that recovery could be had against the railway company alone (the error assigned in the exception under consideration), based it upon some other act of negligence on the part of the railway company, separate and distinct from the act of negligence charged to the flagman, and imputed to the railway company under the principle of respondeat superior. The correctness of this declaration depends upon the following inquiries: (1) Does the complaint base the plaintiff's right to recover damages solely upon the alleged negligence of the flagman? (2) If so, has the plaintiff the right to recover upon the presumption of negligence which arises from the fact of injury to a passenger by some instrumentality of the carrier, or upon some specific act of negligence on the part of the carrier not alleged in the complaint?

As to the first inquiry: That the complaint counted upon a specific and detailed act of the flagman appears indisputably from the fourth and fifth paragraphs, which alone bear upon the question:

"(4) That while the plaintiff, Mrs. George W. Durst, Jr., was traveling on such train, Lonnie P. Williams, one of the defendant's agents or employees, negligently, willfully, and wantonly overturned an oil lamp and tank upon the plaintiff, the said lamp or tank striking the plaintiff upon her head, thereby seriously injuring and bruising same, the oil and smoke therefrom damaging and ruining all of her clothing and wearing apparel.

(5) That said acts on the part of the defendants were due to their negligence, carelessness, willfulness and wantonness in (a) allowing the said lamp and tank to overturn and strike plaintiff's head; and (b) in allowing the said lamp and tank to explode and smoke therefrom to spatter over plaintiff's clothing."

The fourth paragraph is a direct and specific description and charge of a negligent act on the part of Williams; the expression in the fifth paragraph, "that said acts on the part of the defendants," could only refer to the conduct of Williams described in paragraph 4. The Circuit Judge so ruled, without objection:

"The Court: But you specify through whom the defendant was acting.

Mr. Belser: Yes, sir; here in the last allegation (paragraph 5), we say that it was due to the carelessness, willfulness, and wantonness on the part of the defendants.

The Court: Yes, sir; and take that in connection with the fourth allegation [[paragraph 5], and you find that it is the negligence of the defendant railroad, acting through Williams, which you allege."

As to the second inquiry: The general rule is that in an action for damages resulting from a personal injury, due to the negligence of the defendant, the plaintiff may make a general charge of negligence, which is good against a demurrer; but that when he makes a specific act the basis of his charge of negligence, he is confined to evidence tending to sustain that charge. Fell v. Railroad Co., 33 S.C. 198, 11 S.E. 691; Jenkins v. McCarthy, 45 S.C. 278, 22 S.E. 883; Brown v. Railroad Co., 57 S.C. 435, 35 S.E. 731; Sutton v. Railroad Co., 82 S.C. 345, 64 S.E. 401; King v. Railroad Co., 6 Idaho, 306, 55 P. 665, 59 L. R. A. 209; Spires v. Railroad Co., 47 S.C. 28, 24 S.E. 992, and other cases cited in these cases.

It must be conceded that under the case of Sutton v. Railroad Co., 82 S.C. 345, 64 S.E. 401, in case of an injury to a passenger, where there is a general allegation of negligence against the carrier, coupled with a specific act of negligence on the part of an employee, upon failure to establish the specific act, the carrier is not entitled to be acquitted; the case should be submitted to the jury, under the rule of presumption of negligence following an injury to a passenger, resulting from some instrumentality or agency of the carrier. This is not at all a modification of the general rule, but in line with the case of Spires v. Railroad Co., 47 S.C. 28, 24 S.E. 992, which permits evidence of specific acts under a general allegation of negligence not objected to. See the cases of Prescott v. Railroad Co., 99 S.C. 422, 83 S.E. 781, where the Sutton Case is specifically referred to as one containing general allegations of negligence against the carrier, as well as specific acts against the servant. Such also is the case of Porter v. Davis, 118 S.C. 153, 110 S.E. 121. The case at bar, however, contains no general allegation of negligence against the carrier, but the pleader has relied solely upon the specific act of the flagman and the imputed liability of the carrier on account thereof. It is clearly therefore distinguishable from the Sutton Case.

In the absence of a general allegation of negligence on the part of the master, no valid reason appears for departing from the salutary rule, that the plaintiff must rely upon the specification made. After stating the general rule as declared in the Spires Case, it is said in 10 C.J., 1015, as applied to carrier and passenger cases:

"Where the allegations as to the defendant's negligence are specific, the proof also must be specific and must conform to the facts alleged. This rule has been held to apply notwithstanding such specific allegations are unnecessary."

In Orcutt v. Century Co., 201 Mo. 424, 99 S.W. 1062, 8 L. R. A. (N. S.) 929, the court says "Courts draw a distinction between cases where in general allegations of negligence are found, and those wherein are found specific allegations of negligence. We refer now more particularly to cases wherein the relation of passenger...