CARTER
J.
This
action, commenced in the court of common pleas for the county
of Lexington, May 2, 1929, by Melvin J. Hall, as plaintiff
against the defendants, Southern Railway Company and W. H
Atwell, is for the recovery of damages in the sum of $50,000
for personal injuries alleged to have been sustained by
plaintiff August 13, 1928, in the city of Columbia, S. C.
while a passenger on a passenger train of the defendant,
Southern Railway Company, operated from the city of Augusta,
Ga., to the said city of Columbia, and in charge of the
defendant W. H. Atwell as conductor thereon. Issues being
joined, the case was tried at the November,
1929, term of said court before his honor, Judge E. C.
Dennis, and a jury, resulting in a verdict for the plaintiff
in the sum of $1,000 actual damages.
From
the judgment entered on the verdict, the defendants have
appealed to this court. The sole question raised by the
exceptions is that there was no evidence to be submitted to
the jury on the acts of negligence charged against the
defendants, and that, therefore the trial Judge should have
granted defendants' motion for direction of a verdict.
His honor granted defendants' motion as to punitive
damages, leaving only the question of actual damages for the
jury. The allegations of the complaint, material to the
question involved, are as follows:
"3.
That the defendant, W. H. Atwell, was at the times
hereinafter mentioned a servant and agent of the defendant,
Southern Railway Company, to wit: the conductor in charge
of the passenger train hereinafter mentioned and in control
and management thereof, and at the times hereafter
mentioned was acting within the line and scope of his
duties as such for the defendant, Southern Railway Company.
"4.
That on or about the 13th day of August, 1928, the
plaintiff purchased a round trip ticket from the ticket
agent of the defendant, Southern Railway Company, at its
station in Batesburg, in the County of Lexington, and State
of South Carolina, for passage from Batesburg aforesaid to
the city of Columbia, in the State of South Carolina, and
return, and paid therefor the usual and customary charges;
that on the morning of the date aforesaid the plaintiff,
using said ticket, boarded the passenger train of the
defendant, Southern Railway Company, running from the city
of Augusta, aforesaid, to the City of Columbia aforesaid,
at Batesburg aforesaid, and thereby then and there became a
passenger upon a passenger train of the Southern Railway
Company, in charge of the defendant, Atwell, and as such
was entitled to the highest degree of care from the said
defendants and other servants and agents of
said Southern Railway Company; and that it was the duty of
the defendants to provide a safe place for plaintiff to
walk on in boarding and leaving said train and to provide
for his comfort and safety while a passenger thereon.
"5.
That the plaintiff rode said train as a passenger to the
Union Station in the said City of Columbia and after said
train had come to a stop in said station he left his seat
to alight from said train and as he walked into the aisle
of the passenger coach in which he was riding he stepped on
a banana peel lying in said aisle which caused him to slip
and fall with great force and violence against the arm of
one of the seats and the floor of said passenger coach
belonging to said Southern
Railway Company, and at that time in charge of and under
the control of its servants and agents, and plaintiff was
seriously, painfully and permanently injured by said fall
in and about his body and especially in his groin and he
was ruptured and otherwise hurt; that by reason of said
injury the plaintiff was caused to suffer great and
excruciating pain, he was annoyed, inconvenienced and
subjected to considerable trouble and expense in trying to
cure himself and lost much valuable time; and plaintiff is
informed and verily believes that his injuries are
permanent and that he will continue to suffer annoyance,
inconvenience, pain and an impairment of his ability to
make a living for himself and family as a result thereof,
and be subjected to expense for medical treatment, as
plaintiff is dependent upon his skill as a manual laborer
for a livelihood for himself and family.
"6.
That plaintiff's injuries and the consequences thereof,
as hereinabove set forth, are and were due to the joint and
concurrent negligent, reckless, wilful and wanton conduct
of the defendants and other servants and agents of the said
Southern Railway Company, acting in the scope of their
duties as such, in the following particulars, to wit:
"(a)
In failing to provide a safe place for the plaintiff,
and others in like situation, to walk on
in disembarking from said passenger train;
"(b)
In allowing a banana peel, which is slippery and
dangerous for pedestrians to walk or step on, to be
placed on the floor and aisle of said passenger coach
where the plaintiff and others had to walk in getting on
and off of said passenger train;
"(c)
In allowing said banana peel to remain on the floor and
aisle of the passenger coach in which the plaintiff and
others were riding and where passengers had to walk in
getting on and off of said train;
"(d)
In failing to keep a lookout for banana peels and other
like substances in the aisle of the passenger coach in
which the plaintiff and others were riding; they well
knowing that banana peels in the aisle of the coach were
dangerous to passengers and that the same were likely to
be placed or dropped there as it was customary for
passengers to eat bananas and other fruits on trains;
"(e)
In failing to keep the aisle and passage ways in said
passenger coach free of banana peels and other substances
to cause passengers to fall and be injured;
"(f)
In failing to use any care or caution whatsoever to keep
the aisle and passage ways of said coach clean and free
of obstructions and substances calculated to cause injury
to passengers and failing to look out and care for the
safety of the plaintiff and other passengers traveling on
said passenger coach and train.
"7.
That by reason of the aforesaid negligent, reckless,
wilful and wanton acts and conduct of the defendants, and
other servants and agents of the said Southern Railway
Company, the plaintiff was injured in the manner set
forth to his damage in the sum of fifty thousand
($50,000.00) dollars."
The
defendants filed the following answer in the case:
"1.
That they admit that the plaintiff suffered injury at the
time and place mentioned in the complaint, but they deny that they have any knowledge or information
sufficient to form a belief as to the cause or the extent of
his injuries.
"2.
That they deny the allegations of the fifth paragraph of the
complaint, with this modification, that while they know that
obstacles are sometimes placed or dropped in the aisle of the
passenger coach by passengers, they did not know, and had no
reason to suppose, that a banana peel was on the floor of the
aisle at the time alleged in the complaint; and they say
that, if a banana peel was on the floor, its presence there
was not due to negligence of the defendants, or of any other
agent of Southern Railway Company."
The
defendants' motion for direction of a verdict, made at
the close of the introduction of all of the testimony, was
based upon the following grounds:
"1.
There is no evidence that the defendant Railway Company, and
its agents, were negligent, or that their negligence was the
proximate cause of the plaintiff's injury.
"2.
Assuming that the plaintiff slipped on a banana peel, there
is no evidence that the defendants, or other agents of the
Railway Company, put the banana peel on the floor of the
passenger coach; or that they knew it was there and failed to
remove it; or that they negligently failed to discover it and
remove it.
"3.
There is no evidence that would support a reasonable verdict
against the defendants."
The
following testimony of the plaintiff, given on direct
examination is pertinent to the question involved:
"Q.
Do you recall taking a trip to Columbia, on the 13th day of
August, 1928? A. Yes, sir.
"Q.
How did you travel to Columbia? A. On the train, I do not
know the number of the train, but we left Batesburg around
nine o'clock in the morning.
"Q.
On the train leaving Batesburg in the morning going towards
Columbia? A. Yes, sir.
"Q.
Was that a train of the defendant, Southern Railway Company?
A. Yes, sir.
" Q. That is the only railroad running from Columbia
to Batesburg? A. Yes, sir.
"Q.
What conductor was in charge of that train? A. Captain
Atwell.
"Q.
He is the other defendant in this case? A. Yes, sir.
"Q.
Did you purchase a ticket? A. Yes, sir, I purchased a ticket.
"Q.
Where? A. From the ticket agent at Batesburg.
"Q.
For passage to what point? A. To Columbia and return.
"Q.
Did you pay for it? A. I did.
"Q.
When you got on the train what did you do with your ticket?
A. The conductor, Captain Atwell, punched it and gave it back
to me.
"Q.
You presented it to him and he punched it and gave it back to
you? A. Yes, sir.
"Q.
You presented it on the train? A. Yes, sir.
"Q.
Did you ride that train to Columbia? A. Yes, sir, I did.
"Q.
Did you see or talk to anyone on the train? A. Yes, sir
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