Gladden v. Southern Ry. Co, (No. 12342.)

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtSTABLER
PartiesGLADDEN . v. SOUTHERN RY. Co.
Docket Number(No. 12342.)
Decision Date03 January 1928

141 S.E. 90

GLADDEN .
v.
SOUTHERN RY. Co.

(No. 12342.)

Supreme Court of South Carolina.

Jan. 3, 1928.


[141 S.E. 91]

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Contributory Negligence.]

Carter, J., dissenting.

Appeal from Common Pleas Circuit Court of Chester County; S. McG. Simkins, Special Judge.

Action by Nancy Gladden against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.

The complaint, answer, reply, charge, and exceptions referred to in the opinion are as follows:

Complaint.

The plaintiff alleges:

(1) That she is a citizen of Chester county, said state, and defendant is a corporation of vast resources and possessed of great wealth, engaged in the business of hauling passengers and freight for hire, and has tracks and roadbeds in Chester and York counties of this state, and maintains stations in Rock Hill and Ft. Mill, York county, S. C, and has agents and servants at both stations.

(2) That on the morning of the 9th of August, 1924, the plaintiff became a passenger on the north-bound train of defendant from Rock Hill to Ft. Mill, for which privilege she paid her fare by purchasing a ticket before boarding the train at Rock Hill. That the said fare or ticket was taken up by defendant's conductor or other agent, and said conductor or agent, and other agents and servants of defendant, did see or could and should have seen and noticed that plaintiff was an old woman, very stout, feeble, and on account of her age and physical condition was unable to walk steady, to be active, or to walk fast.

(3) That at Ft. Mill plaintiff left her seat to alight from the train on which she was a passenger, and, as she attempted to go down the steps of the coach behind other passengers in front of her, the train started suddenly and without warning and threw her down, and by and on account of said fall the hip bone of her left leg was broken about two inches below the point of contact of the hip bone with the body. That the conductor or flagman, or other agents of defendant, were standing on the platform of the coach from which plaintiff was descending, and did see, or could and should have seen, the plaintiff attempting to get off in her feeble manner, and should have aided her, or should have prevented the train from starting suddenly and without warning to the plaintiff.

(4) That the plaintiff was placed in a hospital for two months and did suffer great pain and agony at the time of the fall and since that time and suffers at the present time, and has been unable to walk a single step, and is now, and has been since the 9th day of August, 1924, confined to her bed, and is continually in aching and excruciating pain and agony, and she is seriously and permanently injured and will never be able to walk again and must spend her remaining days on earth a helpless invalid, never to be free from pain, and as the direct and proximate cause of the gross negligence and carelessness of the defendant, its agents and servants, as hereinabove set forth, she has sustained damages in the sum of $2,999.

(5) That the defendant was negligent in the following particulars, to wit: (a) In failing to furnish plaintiff, an old, feeble woman, assistance in alighting from its train. (b) In failing to furnish plaintiff, an old, feeble woman, adequate and safe means of descending from its train. (c) In failing to stop its train a sufficient period of time for the plaintiff to safely get off. (d) In starting its train while plaintiff was in the act of alighting therefrom. (e) In starting its train suddenly and without warning to plaintiff while she, an old woman, was in the act of descending therefrom.

Wherefore the plaintiff demands judgment against the defendant in the sum of $2,999, and for the costs of this action.

Answer of Defendant.

The defendant above named, answering the complaint herein, by way of amendment to its former answer filed herein, alleges:

For a first defense: (1) It denies the truth of each and every allegation contained in said complaint, except as may be hereinafter specifically admitted.

For a second defense: (1) The defendant admits that on or about the date alleged in the complaint, the plaintiff received certain personal injuries while alighting, or just after she had alighted, from defendant's train. (2) That defendant's train had stopped at the station of Ft. Mill on said date for a reasonable time, to allow passengers to disembark; but the plaintiff, without exercising due care in that regard, failed to alight from defendant's train within a reasonable time, and the aforesaid negligence of the plaintiff was the sole cause of her said injuries, or, combining and concurring with the alleged negligence of the defendant, contributed to her said injuries as a proximate cause.

For a third defense: (1) That on or about the date alleged in the complaint, plaintiff received certain injuries while she was alighting, or just after she had alighted, from defendant's train at the station at Ft. Mill, S. C. (2) That thereafter, in consideration of. the sum of $150 paid to the plaintiff by the defendant, the plaintiff executed and delivered to the defendant, under her hand and seal, a release in writing, and thereby released and forever discharged the defendant from all claims and demands, actions, or rights of action, or from the payment of any further sums of money or render of other satisfaction on account of said injuries. (3) That the defendant now pleads the plaintiff's said release as a full and complete bar to her alleged cause of action.

[141 S.E. 92]

Wherefore, the defendant asks that the complaint herein be dismissed with costs.

Reply to Defendant's Answer.

The reply of the plaintiff to the third defense set forth in the answer of the defendant would respectfully show to the court:

(1) That she denies that she executed the release mentioned in the answer and that she received the $150 referred to in said answer.

(2) That she received no knowledge of the contention of defendant that she had executed a release until so advised by her attorneys after the answer had been served.

(3) That she has been advised by her son that after the 15th of January, 1925, a passbook of the People's National Bank of Rock Hill was received in the mail, said passbook showing a deposit to her credit on the 14th of August, 1924, of $150, which said amount, this plaintiff alleges, is totally inadequate and insufficient to compensate her for the terrible injury she has suffered and is still daily bearing, and must bear to the end of her life, if said sum is intended for said purpose, and therefore said money has not been received or used by her and no claim is, or has been, made by her to said money.

(4) That this plaintiff was negligently injured by the defendant on the 9th day of August, 1924, and this plaintiff is informed that the alleged release and check are dated the 10th day of August, 1924, one day thereafter, at a time when this plaintiff lay helpless in a hospital in great agony from the pains of a broken hip bone, at a time when she was under the influence of drugs, at a time when she was no match for the energetic and ambitious agents of defendant, who were on her trail, and had been, from the very hour of her injury, at a time when she was not conscious of her rights, at a time when she did not realize the extent of her injury, all of which facts were well known to the agents of the defendant, and under such circumstances the agents unfairly and by fraud secured her signature to the release, if one exist, and the said release, if one exist, is null and void.

Wherefore, the plaintiff prays that the answer of the defendant setting up a release as a defense be dismissed.

Charge.

Mr. Foreman and gentlemen of the jury, for exactly a day and a half you have, with commendable patience and attention, listened to the testimony in this case, its conduct in the trial, and the order with which it has been presented by counsel. At this point in this investigation it becomes the duty of the court to present to you, as best it can the law that must control you in the rendering of your verdict. I desire to say at the ouset, Mr. Foreman and gentlemen, that you are constituted by the law of this state the custodian of the facts in this case; whereas the court has the keeping and the presentation of the law. I desire further to state to you that we are here, Mr. Foreman and gentlemen, in a quiet, dispassionate way, uninfluenced by any outside considerations, uninfluenced by any prejudices or passions that sometimes naturally animate the human breast, to try this case, and with the Star of Truth as our guide, to try as best we can to arrive at the truth, and what is just and right in this case, Mr. Foreman and gentlemen, and to let your verdict represent that truth. If, Mr. Foreman and gentlemen, we would let any considerations—and I have no apprehension that a jury of this intelligence would do so—but if we let any feelings or prejudices as to whether or not this party is a colored person or a white person, or whether or not the defendant in this case is a corporation, I say that if you would let influence of that character influence you in your deliberations in arriving at a verdict, why, Mr. Foreman and gentlemen, it would amount to a mockery of justice, and we had better, rather than not let our deliberations be controlled by what is right and what is just, we had better not, Mr. Foreman and gentlemen of the jury, have courthouses, that are denominated and are supposed to be temples of justice, and where justice and right are meted out between man and man. I desire to state further, Mr. Foreman, in the consideration of this case, it is sometimes a right hard thing to do, particularly with one who is more or less a novice as a presiding judge, to keep from stating, in undertaking to present the law of the case, the facts connected with it. As...

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12 practice notes
  • Key v. Carolina & N. W. Ry. Co, No. 13112.
    • United States
    • United States State Supreme Court of South Carolina
    • April 9, 1931
    ...when the charge here under examination is so considered, we think it was free from harmful error. See Gladden v. Railroad, 142 S. C. 492, 141 S. E. 90; Tyner v. Railroad, 149 S. C. 89, 146 S. E. 663. At the request of the appellant, the trial judge particularly called to the attention of th......
  • Langley v. Boyter, No. 0325
    • United States
    • Court of Appeals of South Carolina
    • January 26, 1984
    ...of law and observed "the doctrine of comparative negligence is not recognized"); Gladden v. Southern Ry. Co., 142 S.C. 492, 141 S.E. 90, 100 (1928) (held jury charge by trial judge improperly defined contributory negligence and noted "the doctrine of comparative negligence do......
  • Berberich v. Jack, No. 26955.
    • United States
    • United States State Supreme Court of South Carolina
    • April 4, 2011
    ...a proximate cause thereof, without which the injury would not have occurred.” [392 S.C. 286] Gladden v. S. Ry. Co., 142 S.C. 492, 522–23, 141 S.E. 90, 99 (1928) (citation omitted). Under contributory negligence, if a plaintiff was negligent to any extent in contributing to his own injury, t......
  • Whisenhunt v. Atl. Coast Line R. Co, No. 15140.
    • United States
    • United States State Supreme Court of South Carolina
    • August 9, 1940
    ...settled that contributory negligence to any extent will always defeat a recovery. Gladden v. Southern Railway Company, 142 S.C. 492, 493, 141 S.E. 90. The testimony shows that when an extension board is replaced with a new one, the workman is supposed to fasten the new board at once by bolt......
  • Request a trial to view additional results
12 cases
  • Key v. Carolina & N. W. Ry. Co, No. 13112.
    • United States
    • United States State Supreme Court of South Carolina
    • April 9, 1931
    ...when the charge here under examination is so considered, we think it was free from harmful error. See Gladden v. Railroad, 142 S. C. 492, 141 S. E. 90; Tyner v. Railroad, 149 S. C. 89, 146 S. E. 663. At the request of the appellant, the trial judge particularly called to the attention of th......
  • Langley v. Boyter, No. 0325
    • United States
    • Court of Appeals of South Carolina
    • January 26, 1984
    ...of law and observed "the doctrine of comparative negligence is not recognized"); Gladden v. Southern Ry. Co., 142 S.C. 492, 141 S.E. 90, 100 (1928) (held jury charge by trial judge improperly defined contributory negligence and noted "the doctrine of comparative negligence do......
  • Berberich v. Jack, No. 26955.
    • United States
    • United States State Supreme Court of South Carolina
    • April 4, 2011
    ...a proximate cause thereof, without which the injury would not have occurred.” [392 S.C. 286] Gladden v. S. Ry. Co., 142 S.C. 492, 522–23, 141 S.E. 90, 99 (1928) (citation omitted). Under contributory negligence, if a plaintiff was negligent to any extent in contributing to his own injury, t......
  • Whisenhunt v. Atl. Coast Line R. Co, No. 15140.
    • United States
    • United States State Supreme Court of South Carolina
    • August 9, 1940
    ...settled that contributory negligence to any extent will always defeat a recovery. Gladden v. Southern Railway Company, 142 S.C. 492, 493, 141 S.E. 90. The testimony shows that when an extension board is replaced with a new one, the workman is supposed to fasten the new board at once by bolt......
  • Request a trial to view additional results

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