Lorenzo v. Atl. Coast Line R. Co

• Decision Date: 29 July 1915
• Docket Number: (No. 9150.)
• Citation: 101 S.C. 409,85 S.E. 964
• Parties: LORENZO. v. ATLANTIC COAST LINE R. CO. et al.
• Court: South Carolina Supreme Court

85 S.E. 964

101 S.C. 409

LORENZO.

v.ATLANTIC COAST LINE R. CO. et al.

(No. 9150.)

Supreme Court of South Carolina.

July 29, 1915.

Appeal from Common Pleas Circuit Court of Charleston County; F. B. Gary, Judge.

Action by Malfino Lorenzo against the Atlantic Coast Line Railroad Company and another. From judgment for plaintiff, defendants appeal. Affirmed.

Mordecai & Gadsden & Rutledge, of Charleston, for appellants.

Logan & Grace, of Charleston, for respondent.

FRASER, J. Malfino Lorenzo was a sailor on an Italian vessel that was lying at the wharf in Charleston. It was his first visit to Charleston. He, with four other sailors on the ship, went up into the city to purchase supplies. Between 10 and 11 o'clock at night the sailors were returning to their ship, on Columbus street, a much used public highway and one used by sailors and others in going between the water front and the business portion of the city. When they arrived at that portion of the street where the tracks of the defendant cross the street, they found box cars across the street blocking the same. The party waited a while, and then undertook to go under one of the cars. Lorenzo was the last. When he was under the car it moved forward and broke his leg and crushed his foot. For this injury this action was brought, the complaint alleging negligence and willfulness for blocking the street for more than 10 minutes, and for an unreasonable time, for the failure to have a watchman to warn passengers along said street, and for suddenly moving the cars without the warnings required by the statute. The verdict was for the plaintiff, and the defendants appealed.

There are 12 exceptions, but the appellant states the questions at issue as follows:

"It will be unnecessary to repeat the exceptions here, as they are quite lengthy, but they may be divided into five divisions as follows:

"First. Exceptions 1 to 5 and exception 8 raise the question that the presiding judge erred in admitting testimony as to the blocking of the street by the defendant company on former occasions long antedating the one in question, such testimony, it is submitted, being irrelevant to the issue being tried by the jury.

"Second. Exception 6 assigns error in the refusal to grant the motion for nonsuit.

"Third. Exception 7 assigns error in the refusal to direct a verdict for the defendant.

"Fourth. Exceptions 9, 10, and 11 raise the question that the judge was in error in refusing to charge the jury as requested by the defendant in its sixth, seventh, and ninth requests to charge, the ground of these exceptions being that the defendant was entitled to have these propositions of law charged as presented, for the reason that the plaintiff would only be protected by the law in attempting to pass over the street under the car of the defendant if there were an emergency requiring him to go across the street at this place to reach his ship, and that if there were no such emergency, the plaintiff in doing so would be guilty of negligence or gross negligence amounting to willfulness as the jury might determine, and the plaintiff's cause of action, at common law or under the statute, either for compensatory or punitive damages, or both, thus defeated.

"Fifth. Exception 12 is upon the ground that there was no evidence of willfulness to go to the jury, and therefore a verdict could not be rendered for punitive damages, and the judge should have so charged."

I. Was it error to admit evidence that the street had been frequently blocked, for an unreasonable time, on other occasions? It was not. Where the allegation is made of a willful violation of a duty, the jury may infer willfulness from long-repeated violations of the same duty, and Kirkland v. Railway, 97 S. C. 67, 81 S. E. 306, is full authority for it.

II. The second and third questions may be considered together, as they raise the same questions, to wit: (a) Was there evidence of negligence and willfulness; and (b) incontrovertible evidence of contributory negligence?

(a) There was evidence that the street was blocked for 25 minutes; that the engine was not in sight; that the car was moved without warning; that there was nothing to warn passengers on the street that the cars might be moved at any time; that this street was the main thoroughfare for sailors who were...