Kennedy v. Southern Ry. Co.

• Decision Date: 19 March 1901
• Citation: 38 S.E. 169,59 S.C. 535
• Parties: KENNEDY v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

38 S.E. 169

59 S.C. 535

KENNEDY v. SOUTHERN RY. CO.

Supreme Court of South Carolina

March 19, 1901

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

Action for injuries by John T. Kennedy against the Southern Railway Company From a judgment in favor of plaintiff, defendant appeals. Reversed.

The following is the judge's charge, and the exceptions thereto.

Judge's Charge.

"Gentlemen of Jury: This is an action by John T. Kennedy against the Southern Railway Company for damages. Before I proceed to deliver to you my view of the law of this case, I will pass upon the requests to charge which both parties have made, and that means this: that Mr Kennedy, who brings this action, or, rather, his counsel have views about the law which governs this case, and ask me to state that law, and the Southern Railway Company, or their counsel, have views which they ask me to present; and if I fail to state the law correctly, and in the manner which they present, they have a remedy by appeal to the supreme court and if I fall to present the law correctly the supreme court will send the case back for another trial before another judge and another jury, which all means that a lawsuit is not ended until it is ended right.

Now, the plaintiff has this view of the law generally: First. That negligence is the omission to do something which a reasonable and prudent man, guided by those considerations which ordinarily regulate the conduct and affairs, would do or doing something which a reasonable man would not do under all the circumstances surrounding and characterizing the particular case. And the jury in this case, taking this as the definition of negligence is to find from the facts and circumstances surrounding the transaction in question whether or not the defendant company has committed negligence; and if they so find, and further find that plaintiff was injured thereby, then the verdict should be for plaintiff. Second. A passenger who has paid his fare is entitled to be carried safely to the place of his destination (that is, the place to which he has paid his fare), and must be furnished at said place safe means of exit and landing; and if the train is stopped, and he is directed by the agents in charge of the train to get out at said place, he has the right to rely on their direction, and can presume that the place is safe for his exit, unless the danger thereof is open and apparent to him. Third. If the jury finds the plaintiff is entitled to recover, they are authorized to give him damages, up to the amount claimed in the complaint, for all injuries he has received that they may find he has received; also for all pain and suffering, mental or physical, that they may find he has experienced from such injuries. And if he is permanently injured they may take that into consideration, and also all expenses he may have been at or is liable for because of such injuries as he may have received from the negligence of the defendant. Fourth. Contributory negligence (that is negligence by the plaintiff, to defeat his recovery) is a matter of affirmative defense, and if not pleaded in the answer cannot be proven or avail the defendant. In the answer in this case it is not pleaded, and cannot be considered by the jury. All of those requests, gentlemen, are right.

These are the requests that the defendant, the railroad company, requests me to make: First. While the law holds a railway company to the highest degree of care as to its cars, appliances, and railroad track, in carrying its passengers, and it would be liable for the slightest negligence in that respect, it is not held to such high degree of care as to its station or its appliances. The degree of care that a railway company is bound to exercise as to its platform and approaches is only ordinary care; hence if the jury find in this case that the defendant has exercised ordinary care as to the safety of the place selected for passengers to alight from its cars, and that such place was reasonably safe, and such a place that a person of ordinary care and prudence would have used, then the defendant would not be liable, and the verdict should be in its favor. Second. If the jury find from the evidence that the plaintiff had taken passage on the defendant's car, and had been safely carried to his place of destination, and there alighted in safety from the defendant's car, and had left the defendant's railway track before receiving the injuries complained of, the defendant, under such circumstances (and, I add, under the pleadings in this case), would not be liable. Third. If the jury believe from the evidence that the plaintiff alighted from defendant's car at the place described in the complaint, but that the place where plaintiff alighted was, considering the circumstances, a suitable place and a place of reasonable safety for passengers to alight, and such as a person of ordinary care might select for such purpose, then the defendant would have discharged its duty under the law, and could not, under the pleadings of this case, be held liable to the plaintiff for injury accidentally occurring to the plaintiff while attempting to pass to the car on the connecting road. All of those propositions are correct. I have made some interlineations, Mr. Stenographer, in the second and third, which will indicate my changes.

The fourth request I cannot charge, for this reason, in my judgment, it raises an issue not raised by the pleadings; that is to say, if the plaintiff, John T. Kennedy, was negligent on that night or not, if the railroad company was negligent it makes no difference if the plaintiff was negligent or not, because the answer hasn't pleaded he was negligent. If the railroad company was not negligent, it makes no difference if the plaintiff was negligent or not; it would not be relevant. Before the plaintiff comes into court (the man who brings the action is called the 'plaintiff'), he goes to his lawyer, and he puts in

black and white on paper what complaint he has (what complaints he has) against the railroad company, states specifically what happened, when it happened, and where it happened. That's called the 'complaint.' Then that is given the railroad company, and their lawyer puts down on a piece of paper their answer to it, and that's called the answer. When their witnesses come into court they must swear what's in those papers, because that's what they have said was their case, and nothing else. They have advertised what they are going to prove, and the witnesses must swear to those things, and those things alone. Now, Mr. Kennedy has charged what? Mr. Kennedy says-- And I speak of the complaint, not what he said on the stand. Mr. Kennedy says he bought a ticket in Columbia to Batesburg, and paid his money for it, and before they got to Batesburg, to wit, at a junction some distance north, the train stopped, and he was invited to get out, and in getting out there was no safe place for him to get out,--alight,--and he fell and was injured. The railroad company denies that. That raises these issues for you: First, did the railroad company furnish him with a safe place to alight? That's an issue of fact for you. The second is, was he injured thereby? The third is, how much was he injured thereby, if he was injured at all? What was the relationship between them? Railroads sustain manifold relationships to the public. When they carry men on their cars, they sustain one relationship. When you cross their track in front of their engine, they sustain another relationship. Hauling freight over their road, they sustain another relationship. With all those we have nothing to do. The question is, was the place where the plaintiff alighted a safe and suitable place for passengers to alight, and was he injured by the negligence of the railroad company? Those are the questions in this case. Now, I charge you that it is the duty of a railroad company, when it undertakes to carry a passenger for hire, to take him in at a safe place, and set him down at a safe place. Now, how safe a place? I charge you, gentlemen, that while the car is rolling along its track at a frightful rate of speed, under the impulse of steam power, the railroad company owes the greatest degree of care to its passengers, because the peril is very great, and the law imposes upon the railroad company the greatest degree of care. Does the law impose the same degree of care to furnish a place for passengers to get out? I charge you that it does not. There is no case in our books that decides the point. The only case is the case Mr. Henderson cites, divided between three judges. Therefore I have to split the road, and do the best I can. In my judgment, the excellence of the law consists in the reasonableness-- The essence of the law consists in its reasonableness and in enforcing it. Now, how much care must be exercised in furnishing a place for passengers to alight? I charge you that they must use ordinary care; such care as a man of ordinary care, foresight, and understanding; such a safe place as a man of ordinary care and foresight would furnish, or ought to furnish, under like circumstances. I don't know those elements. You must-- You have got to fix in your mind the standard of right doing, so it comes down to a question for the jury at last. I tell you the railroad company is bound to furnish Mr. Kennedy with a reasonably safe place to alight from that train. And the question comes to your mind, was it a safe place to alight? That's a question you will have to solve. If it was a safe place, the railroad company is not liable. If it was not a safe place, the railroad company is liable. That is the first question for you to determine. The second issue is, was Mr. Kennedy hurt by the railroad company

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