McKittrick v. Greenville Traction Co.

• Decision Date: 09 March 1911
• Citation: 70 S.E. 414,88 S.C. 91
• Parties: McKITTRICK v. GREENVILLE TRACTION CO.
• Court: South Carolina Supreme Court

70 S.E. 414

88 S.C. 91

McKITTRICK v. GREENVILLE TRACTION CO.

Supreme Court of South Carolina

March 9, 1911

Appeal from Common Pleas Circuit Court of Greenville County; John S Wilson, Judge.

Action by Ada McKittrick against the Greenville Traction Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The following are defendant's exceptions:

"(1) The presiding judge erred in refusing the defendant's motion for a nonsuit as to the cause of action for punitive damages, upon the ground that there is no testimony tending to establish a willful, wanton, or malicious act on the part of the defendant, its agents servants, or employés.

"(2) The presiding judge erred in charging the jury, as requested by the plaintiff in the first request to charge, as follows: 'It is the duty of a common carrier of passengers to exercise the highest degree of diligence and foresight consistent with the conduct of the business, for the protection of passengers, and if a passenger is injured by means of any of the instrumentalities in charge or control of the common carrier, there is a presumption of negligence causing the injury, and it becomes the duty of the defendant company to rebut such presumption if it can.'

"Specification: The presumption of negligence on the part of the carrier does not arise from the bare fact that a passenger has been injured while on the carrier's train; it does arise on proof of such injury as the result of some agency or instrumentality of the carrier, arising from some act of omission or commission of the servants of the carrier, or some defect in the instrumentality of transportation.

"(3) The presiding judge erred in charging the jury, as requested by the plaintiff in the second request to charge, as follows: 'A passenger of a common carrier remains a passenger until finally and completely discharged from the conveyance of carriage, and if a passenger is injured while alighting from the car of a common carrier by reason of the moving of the car, the presumption of negligence attaches.'

"Specifications: The testimony was contradictory as to the manner in which the plaintiff was injured. She introduced evidence tending to show that she was injured as alleged in her complaint, while the defendant's testimony tended to show that she suffered injury by jumping from the car before it reached her destination and while it was in motion. The charge excepted to gave the plaintiff the benefit of a fact to which she was not entitled, and which was prejudicial to the rights of the appellant. The fact that she may have been injured while alighting from the car by reason of the moving of the car, did not prove that she was injured as the result of some agency or instrumentality of the carrier, some act of omission or commission of the servants of the carrier, or some defect in the instrumentality of transportation.

"(4) The presiding judge erred in charging the jury, as requested by the plaintiff, in the third request to charge, as follows: 'If the jury believe from the evidence that, by the exercise of the highest degree of care consistent with the business, the defendant would have ascertained that plaintiff was in the act of leaving its car, and if by the exercise of the highest degree of care consistent with the business, defendant would have either stopped its car to enable plaintiff to alight in safety, or would have warned and prevented plaintiff from alighting from its car while in motion, and if the jury find that the defendant failed to do these things, and if such failure was negligence, defendant would be liable for the injury, if any, suffered by plaintiff.'

"Specifications: (a) It was a question of law whether the defendant owed to the plaintiff the duty of exercising the highest degree of care consistent with the business to ascertain that she was in the act of leaving the car, which question should have been decided in the negative by the court; and it was error prejudicial to the appellant to submit this question of law to the decision of the jury. (b) It was a question of law whether the defendant owed to the plaintiff the duty of exercising the highest degree of care consistent with the business to stop its car to enable plaintiff to alight in safety before the car had reached plaintiff's destination, which question should have been decided in the negative by the court; and it was error prejudicial to the appellant to submit this question of law to the decision of the jury. (c) It was a question of law whether the defendant owed plaintiff the duty of exercising the highest degree of care consistent with the business to warn and prevent the plaintiff from alighting from its cars while in motion, which question should have been decided in the negative by the court; and it was error prejudicial to the defendant. (d) The plaintiff, having alleged in her complaint, and having offered testimony tending to show, that she was thrown from the car by a sudden movement of the car while she was alighting, to the knowledge of the conductor, she should have been required to prove the facts so alleged by the preponderance of the testimony, and should not have been allowed to rely upon any presumption which might attach from the fact of injury through some instrumentality of the carrier, resulting from omission or commission of its servants, or from some defect in the instrumentalities of transportation. The rule of law being that, where certain facts are alleged, the plaintiff is confined to the proof of those facts and cannot supplement her proof by the presumption arising from an injury to a passenger under the circumstances named."

Cothran, Dean & Cothran, for appellant. J. J. McSwain, for respondent.

GARY A. J.

This is an action for damages alleged to have been sustained by the plaintiff through the wrongful acts of the defendant.

The complaint alleges "that plaintiff was a stranger to the city of Greenville, and when the car had reached North street and stopped the conductor in charge of said car motioned and directed plaintiff to get off, and plaintiff immediately arose from her seat, passed out of said car, and was descending the steps from said car, when the defendant negligently,...