Morrow v. Atlanta & C. Air Line Ry. Co.

• Decision Date: 23 November 1909
• Citation: Morrow v. Atlanta & C. Air Line Ry. Co., 66 S.E. 186, 84 S.C. 224 (S.C. 1909)
• Parties: MORROW v. ATLANTA & C. AIR LINE RY. CO.
• Court: South Carolina Supreme Court

66 S.E. 186

84 S.C. 224

MORROW v. ATLANTA & C. AIR LINE RY. CO.

Supreme Court of South Carolina

November 23, 1909

Appeal from Common Pleas Circuit Court of Spartanburg County; D. E Hydrick, Judge.

Action by Charles R. Morrow against the Atlanta & Charlotte Air Line Railway Company.From a judgment for defendant, plaintiff appeals.Affirmed.

A. G Mangum and Wilson & Osborne, for appellant.Sanders & De Pass, for respondent.

WILSON A. A. J.

The plaintiff in this action by his complaint alleges:

"First.That he is a citizen and resident of the state of South Carolina, aforesaid.

"Second.That the defendant, Atlanta & Charlotte Air Line Railway Company, is now, and was at the times hereinafter mentioned and set forth, a corporation duly created and organized under the laws of the state of South Carolina, and at said times, and now, owned a railroad from Charlotte, N. C., running through the county of Spartanburg to Atlanta, Ga., together with the tracks, cars, locomotives, passenger stations or depot, station yards, and all appurtenances thereto belonging, and was a common carrier of passengers thereupon for hire between the aforesaid cities of Charlotte, N. C., through the aforesaid county and city of Spartanburg, S. C., and Atlanta, Ga., but prior to the night of the 27th day of August, 1902, the defendant had leased, under the authority of law, its said line of railway to Southern Railway Company, another railway corporation, and the said Southern Railway Company was on the night of said 27th of August, 1902, as now, operating the said line of railway from the said city of Charlotte, through Spartanburg, S.C. to the said city of Atlanta, Ga., as a common carrier of passengers and freight thereupon for hire.

"Third.That on the night of the 27th day of August, A.D. 1902, the plaintiff accompanied his sister, one Mattie York, and the latter's six infant children, to the passenger station or depot of the above-named lessee of defendant, Southern Railway Company, in the city or town of Gastonia, N. C., said passenger depot or station being the place provided by the defendant and its aforesaid lessee for persons or passengers to get on and off the trains of the defendant's said lessee, and, after reaching said passenger depot or station, plaintiff's sister purchased from the duly authorized ticket agent of the lessee of defendant, Southern Railway Company, tickets for herself and for her children, who were not under the tender age, for which transportation charges are not made, over said leased railroad from Gastonia, N. C., through Spartanburg, S. C., to a point beyond Atlanta, Ga., in Indian Territory, paying for said tickets the customary and usual charge made by said Southern Railway Company, as lessee of the defendant, allowed by law to be made for such transportation.

"Fourth.That the children of the sister of plaintiff above mentioned, six in number, were aged from four years to fifteen years, respectively, and his sister, in addition to the care and attention demanded of her by these children of tender years, was further incumbered by two heavy grips and by two large bundles, containing provisions and other necessaries for the long trip to Indian Territory, thereby rendering it absolutely necessary that she, with her children, grips, and bundles, be assisted aboard train No. 35 of the lessee of the defendant, being the train she proposed to get aboard, by plaintiff, should the conductor and crew of train either fail to assist her, or not be in position to render such assistance.

"Fifth.That said train No. 35, going south (that is, towards Spartanburg and Atlanta), was by schedule then in operation due to reach Gastonia, N. C., at about 11 o'clock p. m., but on the night of the 27th of August, 1902, was a little late, and did not reach the passenger station or depot in Gastonia until some minutes after the schedule time.As the train drew up and stopped at said passenger station, a considerable number of passengers disembarked from said train, and quite a number besides plaintiff's sister and her children got aboard said train, but neither the conductor nor any other member of the crew of said train either assisted or offered to assist plaintiff's sister or her children aboard, but, on the contrary, a member of the said train crew, in uniform and with a lantern, was standing within a few feet of the coach or car, where plaintiff's sister and her six children, with the assistance of plaintiff and a brother-in-law, were placed aboard said train, but said officer, agent, servant, or employé of the lessee of defendant in no manner assisted, or offered to assist, plaintiff's sister with her children, grips, and bundles aboard the train and to seats within, but, on the contrary, entirely refrained from so doing.

"Sixth.That by reason of the failure of the officers, agents or servants of the defendant and of its lessee, Southern Railway Company, in charge of said passenger train No. 35, to aid or to offer to assist in placing the sister of plaintiff with her children and luggage safely aboard said train, plaintiff was compelled to do so, and with the assistance of a brother-in-law succeeding in getting his sister, her children, grips, and bundles aboard the first-class passenger coach of said train, but, before the said passenger could be seated, the defendant and its lessee, Southern Railway Company, their officers, agents, and servants in charge of said passenger train, moved and started, and caused to move and start, the said train, with full knowledge and notice that plaintiff was in said car, and that sufficient and reasonable time had not been allowed for him to get off same, and that plaintiff proposed getting off .

"Seventh.That immediately on discovering that the aforesaid train had started, and was moving, plaintiff went to the platform and steps of said first-class car, the customary place used for passengers and persons attending them to get aboard and alight from said train (being the place provided by defendant and its lessee for such purposes), and, observing that the train was moving very slowly and had not proceeded as far as 150 feet from the point of starting and was still within the passenger station yard, plaintiff descended from the platform to the bottom step of said car, and, having firmly grasped with his hands the railing of the steps and platform, was carefully scanning the ground to ascertain whether he could with safety alight, but, before plaintiff could determine, the officers, agents, and servants of defendant and of its lessee in charge of said train, with knowledge that he was still aboard and proposed getting off, negligently greatly accelerated the speed of said train, thereby causing the same to jerk suddenly, which sudden jerk brought him in contact with a mail sack or sacks which the officers, agents, and servants of the defendant and its aforesaid lessee, Southern Railway Company, had negligently suffered to remain on said passenger station yard, and by reason of these joint and concurrent acts of negligence plaintiff was jerked and hurled under the aforesaid moving train of cars, the wheels of which passed over his legs, crushing and breaking them, thereby rendering it necessary to amputate both of his legs, the left leg between the knee joint and the hip joint, and the right leg between the ankle joint and the knee joint, moreover, deeply cutting and disfiguring plaintiff's face and head, and inflicting terrible pain and anguish of body and mind, laming and disfiguring the plaintiff for life, and rendering him unable to pursue his usual calling or any calling, disabling and permanently crippling him, so that he will never walk and totally incapacitating him from making his support, to the great damage of plaintiff, in the sum of $50,000.

"Eighth.That the plaintiff, Charles R. Morrow, received the terrible and permanent injuries of which he complains, above mentioned and described, by and through the negligence and carelessness of defendant, its officers, agents, and servants and through the negligence and carelessness of Southern Railway Company, the lessee of defendant, its officers, agents, and servants in charge of the aforesaid passenger train, and also because of reckless, willful, and wanton misconduct of the defendants, its officers, agents, and servants and of Southern Railway Company, its lessee, its officers, agents, servants, and employés in charge of said passenger train, No. 35, going south in the following respects, namely:

"(1) In not rendering any assistance whatsoever in placing Mrs. York, the sister of the plaintiff, and her six children, safely aboard passenger train No. 35, south, to whom as passengers after selling them tickets for their transportation the highest degree of care was due by the defendant and its lessee, Southern Railway Company, consistent with its duty as a common carrier, thereby rendering it necessary for plaintiff to give the assistance to his sister and children that should have been rendered by the defendant and its lessee, their officers, agents, and servants in charge of said train.

"(2) In not stopping said passenger train No. 35 the customary and reasonable time at Gastonia, N. C., and in not giving the customary and usual signals and warnings given by said officers, agents, and servants in charge of said train, but, on the contrary, in starting the train without giving the plaintiff any notice or a sufficient or reasonable time to alight from the train after first discharging the services to his sister and her children that had been forced on him through the default and willful and wanton neglect of said officers, agents, and servants.

"(3) In starting said passenger train of cars in motion

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