Miller,v,southern Ry. Co.

• Decision Date: 29 April 1904
• Citation: 69 S.C. 116,48 S.E. 99
• Parties: MILLER v SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

48 S.E. 99

69 S.C. 116

MILLERvSOUTHERN RY. CO.

Supreme Court of South Carolina.

April 29, 1904.

CARRIERS—DELAY OF PASSENGER—ACTION— DAMAGES.

1. In an action by a passenger to recover because of delay in the movement of a train, evidence that it was due to leave a station 20 minutes late, and did so leave, and after moving about 100 yards returned to the station, where it remained for 10 hours, is sufficient to prevent a nonsuit, where no information was given the passengers as to the probable duration of the delay or the cause thereof.

2. In an action by a passenger to recover for delay of a train, on evidence that it remained at a station for some 10 hours, and that the conductor of the train refused to give the passengers any information as to the probable extent of the delay or the cause thereof, an instruction that defendant was not liable for punitive damages was properly refused as a charge on the evidence.

3. Where an exception on appeal refers to another exception for specifications of error, it will not be considered.

4. It is a part of a contract of a railroad company with the public that its trains will be run on schedule time, so as to render it liable to a passenger for failure to do so.

5. Where a train is delayed, a passenger is not entitled to punitive damages, unless defendants conduct was willful, malicious, and wanton.

6. Where a train is delayed, a passenger is not entitled to actual damages, unless defendant's conduct was willful and negligent.

7. Where a train is delayed, a passenger is not entitled to actual damages, unless he shows some pecuniary injury or personal injury.

8. A passenger is not entitled to damages for inconvenience, loss of time, or fatigue caused by the delay of a train, unless it has produced some pecuniary damage or personal loss resulting.

9. Refusal of a new trial for insufficient evidence will not be considered on appeal.

Appeal from Common Pleas Circuit Court of Greenville County; Purdy, Judge.

Action by H. W. Miller against the Southern Railway Company. From judgment for plaintiff, defendant appeals. Affirmed.

T. P. Cothran, for appellant.

Lewis Dor roh, for respondent.

POPE, C. J. On the 7th day of November, 1902, the plaintiff, residing In the city of Greenville, was in the city of Spartanburg on business, and at night applied to the local agent of the defendant in Spartanburg for a ticket on train No. 35, to go to Greenville. The said local agent informed the plaintiff that train No. 35 was 20 minutes late, but sold him a ticket. This train, No. 35, was a through passenger train from Spartanburg to Greenville—a distance of about 30 miles. Said train arrived about 20 minutes late, and the plaintiff, with a goodly number of other passengers, got on board, when said train moved about 100 yards towards Greenville and then stopped, and so remained until next morning, about 10:30 o'clock, after which it proceeded to Greenville, reaching the latter If 4. See Carriers, vol. 9, Cent. Dig. § 1039.

about 11:10 o'clock. The plaintiff applied to the conductor twice to know when the (train would start, and received no definite information, and when he applied to the conductor to know if the passengers could not be transferred to another train which could take the passengers on to Greenville, the conductor replied that they had no such orders. He then asked such conductor if the train upon which he and other passengers were seated could not be sent on to Greenville by way of Laurens, and the conductor replied that he had no such orders. The plaintiff's anxiety to reach Greenville was because he was state superintendent of an insurance company, for which he had important business engagements for the next morning. He reached Greenville, but found that his business engagements could not be and were not attended to, owing to his failure to reach Greenville on time. The plaintiff brought his action against the defendant to recover his damages, which he fixed at $500.

Inasmuch as the defendant demurred to the complaint, it is necessary that such complaint shall be set out. It was as follows, omitting its caption and opening words: "(1) That Southern Railway Company, defendant, was at the time hereinafter mentioned and still is a corporation created under the laws of the state of Virginia, and as such has power to sue and to be sued, and is a common carrier, and is engaged in carrying passengers in railway trains for hire from point to point along certain railway lines in South Carolina, among other lines that passing through the city of Spartanburg. (2) That before and at the time herein named defendant operated its trains by a schedule, according to which its train No. 35 left Spartanburg at the hour of 12:20 a. m., and arrived at Greenville at the hour of 1:20 a. in.; that said train had been so run for a long time, and the fact was a matter of common knowledge, and defendant published said schedule in newspapers and posted said schedule on bulletin hoards at its stations, and otherwise advertised said schedule. (3) That November 7, 1902, plaintiff, who lives in Greenville, was In Spartanburg, and, desiring to return to Greenville and relying upon defendant's said schedule, he presented himself at the ticket office in defendant's depot in Spartanburg for the purpose of securing passage to Greenville on train No. 35. (4) That plaintiff was then and there informed by defendant's servant and agent, the ticket agent in said ticket office, that train No. 35 would arrive 20 minutes late, and would leave for Greenville 20 minutes after the hour of 12:20, its schedule time. (5) That, relying upon said ticket agent's statement, plaintiff then purchased from said ticket agent a ticket for Greenville, and, upon the arrival of said train No. 35 a few minutes later, entered one of the cars of said train No. 35 as a passenger. (6) That said train No. 35, with plaintiff and others as passengers, did not leave for Greenville at 20 minutes after the hour of 12:20, its schedule time, but by reason of defendant's carelessness, wantonness, recklessness, and negligence, and its disregard of the duty it owed to its passengers and to the public, said train was made or permitted to lie in the depot at Spartanburg for 10 hours or more, leaving at last between the hours of 10 a. m. and 11 a. m., and arriving at Greenville at the hour of 11:10 a. m. (7) That while said train No. 35 lay in the depot at Spartanburg, as stated, plaintiff repeatedly asked defendant's servant and agent, the conductor of said train No. 35, when said train would leave, but said conductor wantonly and recklessly refused to give any information in answer to said request, leaving plaintiff in ignorance as to when said train would start for Greenville, and not knowing but what it would start at any minute, and thereby requiring him to remain in the depot at Spartanburg, prepared and ready to leave, the whole of the 10 hours or more that said train lay in said depot. (8) That by reason of said train's delay, caused as aforesaid, and by reason of being required to wait so long at said depot at Spartanburg, caused as aforesaid, plaintiff missed an important engagement in his office in Greenville, and suffered great annoyance, anxiety, inconvenience, and discomfort, and arrived at his office in Greenville too late to attend to his regular morning's work, and too tired to do any work, all to his damage $500. Wherefore plaintiff prays judgment against defendant for the sum of $500 and the costs of this action."

The defendant demurred to the complaint herein upon the ground that it does not state facts sufficient to constitute a cause of action. "Specifications: (1) The claim for punitive damages cannot be sustained, for the reason that no actual injury is alleged to have been inflicted on or suffered by plaintiff. Watts v. Ry., 60 S. C. 72, 38 S. E. 240. (2) The claim for actual damages cannot be sustained for the reason that none are alleged. The statement that plaintiff missed an important engagement and suffered great annoyance, anxiety, inconvenience, and discomfort, is too remote, uncertain, and speculative. Martin v. Ry. (S. C.) 10 S. E. 960; R. Co. v. Hayden, 51 Am. Rep. 274. (3) No notice to defendant of any special damage claimed is alleged. Mood v. Tel. Co., 40 S. C. 524, 19 S. E. 67."

The circuit judge, Judge Purdy, passed the following order overruling the demurrer: "On the call of this case for trial, the defendant interposed a demurrer to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action, and submitted specifications of the grounds in writing. As these specifications are in the record, it will be unnecessary to set them forth here. The plaintiff resided in Greenville, and had occasion to visit Spartanburg on business, leaving Greenville in the early evening, expecting to leave Spartanburg at 12:20 at night He alleges in his complaint that the defendant had advertised that its train left Spartanburg at 12:20 at night, and that this fact was known to the public generally, as well as to himself, and that in addition to relying upon this statement, he asked the ticket agent at Spartanburg concerning this train, and was informed that the train was 20 minutes late, and thereupon he purchased a ticket for Greenville. He further alleges that the train came in at the time stated by the agent, and that he went aboard of same, but that defendant either held or permitted the train to remain in the depot till 10 o'clock next morning, without giving him any reason or explanation for so doing; and he charges that this was carelessly, recklessly, wantonly, and negligently done, in utter disregard of plaintiff's rights and the defendant's duty to the public. The complaint further charges that by reason of the premises the plaintiff was obliged to remain in the depot all night without sleep, to his great annoyance and inconvenience, and that he arrived home too late to attend to his...