Izlar v. Manchester & A.R. Co.

• Decision Date: 11 April 1900
• Citation: 35 S.E. 583,57 S.C. 332
• Parties: IZLAR v. MANCHESTER & A. R. CO.
• Court: South Carolina Supreme Court

35 S.E. 583

57 S.C. 332

IZLAR v. MANCHESTER & A. R. CO.

Supreme Court of South Carolina

April 11, 1900

Appeal from common pleas circuit court of Orangeburg county; George W. Gage, Judge.

Action by William V. Izlar against the Manchester & Augusta Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Moss & Lide, for appellant.

Izlar Bros. and T. M. Raysor, for respondent.

POPE J.

The plaintiff brought his action against the defendant to recover $5,000 damages for breaking his leg and his ankle, through defendant's failure to keep safe its way of egress and ingress to its station in the city of Orangeburg, S. C., on the night of the 3d of December, 1897, when the plaintiff was endeavoring, in the darkness of the night, with no lights on defendant's premises, to reach such station, to receive his wife and daughter, who were passengers on defendant's train which was scheduled to, and did, arrive at such station at 5:37 o'clock. The trial was had before Judge Gage and a jury. Verdict for plaintiff for $2,000. After entry of judgment, defendant appealed, on the following alleged errors in the charge of the presiding judge, to wit: "First. That his honor, the circuit judge, erred in refusing to charge the first request of the defendant, which is as follows: 'That it is not the duty of the railroad company to provide for lighting of points outside of its property and if the jury believe from the evidence that the accident was caused by the failure of the city of Orangeburg to provide proper lights on its street near the station grounds of the company, and did not so provide such lights, then they must find for the railroad company.' Second. That his honor erred in refusing to charge the second request of the defendant, which is as follows: 'That if the jury believe from the evidence that the accident occurred before the plaintiff got upon the right of way or the property of the company, then they must find for the defendant.' Third. That his honor erred in refusing to charge the third request of the defendant, which is as follows: 'That if the jury believe from the evidence that the culvert, ditch, or embankments were constructed by others than the railroad company, and outside of its property or right of way, then they must find for the defendant.' Fourth. That his honor erred in refusing to charge the fourth request of the defendant, which is as follows: 'That if the jury believe from the evidence that the accident occurred on Dukes avenue, a public street of the city of Orangeburg and not upon the property of the railroad company, then they must find a verdict for the defendant.' Fifth. That his honor erred in refusing to charge the seventh request of the defendant, which is as follows: 'That if the jury believe from the evidence that the street lamp on said street of said city would have given sufficient light for the plaintiff to have avoided the accident, and that it was the duty of the city to have kept the same lighted, and it was not so lighted, then the jury must find for the defendant.' Sixth. That his honor erred in charging the jury, in his statement of the case, the following: 'Fell over this embankment, and broke one leg and dislocated the other ankle;' this being a misstatement of the claim of the plaintiff, and was thereby calculated to mislead the jury. Seventh. That his honor erred in charging the jury as follows: 'If the railroad company saw the public use it [a way of ingress and egress], on its land, or the land of another, and recognized the right of the public to use it for a way of ingress and egress to its railroad station, then it makes no difference whose land it was on.' Eighth. That his honor erred in charging the jury the following: 'That I don't know that there is much difference [between ordinary care and a great degree of care], but I am bound to tell you there is. The law says that a high degree of care is one thing, and an ordinary degree of care is another thing. If you can see it, see it."'

The appellant, in its sixth request, complains of alleged reversible error committed by the circuit judge in his charge to the jury, by stating that the plaintiff "fell over this embankment, and broke one leg and dislocated the other ankle." When the language complained of was used by the circuit judge, he was describing to the jury what the allegations made by the plaintiff in his complaint were. The complaint stated, "The plaintiff, without fault on his part, fell over the said embankment with great force, whereby his right ankle was dislocated, and one of the bones in his right leg, between the knee and ankle joint, was broken." Nothing was said during the trial, by the counsel on either side, as to this slight mistake. The complaint had been read to the jury, the plaintiff had testified to the same facts stated in the complaint, and his attending physician had also testified to the same effect as the plaintiff. We think there was no reversible error. This court, in the case of Rumph v. Hiott, 35 S.C. 459 15 S.E. 240, has said, "The proper means of correcting such errors, if errors there be, is by bringing the matter to the attention of the judge at the time, or, at most, by a motion for a new trial." The record discloses that neither course was taken by the defendant. Although a motion for a new trial was made, this matter was not called to the judge's attention or relied upon. The sixth exception is overruled.

In the eighth ground of appeal the appellant suggests error because the circuit judge, while he charged the jury that the law required him to charge that there was a difference between ordinary care and a great degree of care, still he himself could not see it. The charge of the judge emphasized the law which was to govern the jury in this case, when he held the defendant only liable to the plaintiff for ordinary care. Therefore it is a pure abstraction, whether the Circuit Judge was able to distinguish between extraordinary and ordinary care. This exception is overruled.

We think the first, second, third, fourth, fifth, and seventh grounds of appeal may be considered together. What relation subsists, in law, between one who visits the station of a railroad, to meet or to part with a wife or child, who is already, or is to become, a passenger on such railroad, and such railroad? We ought to remember, in considering this question, that railway companies are clothed by law with certain privileges by the public, in return for certain concessions to the public. Railways are common carriers, for hire, of persons and property. As such common carriers, they owe the duty of extraordinary care with respect to their passengers and the personal property transported. But the circuit judge, in the case at bar, held that they owed a duty to the persons who are embraced in the question we are endeavoring to consider. Such persons, who repair to the stations of railroads to make inquiries after property in charge of such railroads, are not trespassers upon the grounds of the railroad at their stations. They are licensees, in going over the railroad lands and to their stations. When a person goes upon the lands of a railroad in order to reach the station at which his wife or child embarks or disembarks from the passenger train of such railroad, he is not a trespasser, in so doing. He, too, is a licensce. Speaking of this matter, the American and English Encyclopaedia of Law (volume 5, ...