GARY
A. J.
The
complaint sets forth two causes of action, the first of which
is as follows: "(1) The first paragraph alleges the
corporate existence of the defendant. (2) That at the said
times the defendant was operating, in connection with its
railroad, the Carolina, Cumberland Gap & Chicago Railway; the
same being a line of railway running from the city of Aiken
in this state, to the town of Edgefield, also in this state
and then owned by the Carolina, Cumberland Gap & Chicago
Railway Company, which was also a corporation created by and
under the laws of this state. (3) That on or about the 31st
day of March, 1896, the plaintiff, for a valuable
consideration, purchased of the defendant company, at the
depot of the Carolina, Cumberland Gap & Chicago Railway, at
the town of Edgefield, a round-trip ticket, which entitled
the plaintiff to passage from the town of Edgefield over the
railway of the said Carolina, Cumberland Gap & Chicago
Railway Company, via the said city of Aiken, thence over the
railway of the defendant company to the city of Augusta, in
the state of Georgia, which said ticket was limited to a
period of ten days from the date of issuance. And that the
plaintiff did, accordingly, on or about the *** day of March,
1896, board a passenger car of defendant at Edgefield, and in
due course of travel was carried by virtue of said ticket to
the said city of Augusta; and, after remaining in said city
several days, the plaintiff did, on
or about the *** day of April, 1898, and within the period
limited by said ticket, board the train of the defendant
company for the purpose of returning to the town of Edgefield
upon said ticket, as was provided by the terms of the
contract thereon stated, but that, when the plaintiff reached
the city of Aiken on the said return trip, the defendant, in
disregard of its said contract as contained upon said ticket,
and of the rights of the plaintiff, negligently failed to
carry, or to provide for the carriage of, the plaintiff from
said city of Aiken to the said town of Edgefield, and left
her in said city of Aiken. And the plaintiff further alleges
that, by reason of the failure of the defendant to carry her
back to said town of Edgefield, she was exposed to a severe
storm of sand, wind, and rain, which brought on her a severe
attack of sickness, and caused her to be confined to her bed
and house for upward of two months, and caused her severe
pains and suffering, and has thereby caused her health to be
permanently impaired, so that she is not as strong and
healthy as she was before being exposed to said storm,
through the negligence of the defendant in not providing her
with passage back to the town of Edgefield as aforesaid, to
the injury and damage of the plaintiff in the sum of two
thousand dollars." The second cause of action is similar
in its allegations to the first, except it alleges that the
defendant's wrongful act was willful, grossly negligent,
and in wanton and reckless disregard of the plaintiff's
rights, and that she was damaged in the sum of $5,000.
The
jury rendered a verdict in favor of the plaintiff for $3,000,
and the defendant appealed upon exceptions, the first of
which is as follows: "(1) That his honor, Judge Watts,
the presiding Judge, erred in permitting the plaintiff, as a
witness upon the stand, against the objection of the
defendant, to testify that she was caught in a storm of sand
and rain after she left the depot of the defendant company at
Aiken, and to testify that she received injuries from said
storm; for the reason, it is submitted, that this action is
for a breach of contract, and not a tort, and such damages
are too remote, and would not enter into the proper measure
of damages for the causes of action set forth in the
complaint."
The
first question raised by this exception is whether the action
is for a breach of the contract or a tort. The allegations of
the first cause of action are appropriate to an action of
tort arising from negligence, and the second cause of action
is founded upon a tort growing out of alleged willfulness or
intentional wrong. The cases of Head v. Railway Co. (Ga.)
7 S. E. 217, Purcell v. Railroad Co. (N. C.) 12
S.E. 954, and Hansley v. Railroad Co. (N. C.) 20
S.E. 528, as well as many others that could be cited, show
that an action of tort can be brought for such alleged
violations of duty; and the case of Hammond v. Railroad
Co., 6 S. C. 130, which was an action by a passenger to
recover damages for injury caused by defendants'
negligence, shows that the recital of the contract was not
for the purpose of "founding a right to a recovery for
the breach of the contract." The court further says:
"It was not referred to as the foundation of his action.
It may be that his complaint would not have been open to any
exception, if he had omitted all reference to it. It was
introduced to show that he was not an intruder on the train
of the company. It was merely preliminary to the statement of
his real cause of action; and, if necessary to its support,
he could have offered proof of it without setting it out in
his complaint." Parenthetically, we may remark that the
cases of Purcell v. Railroad Co. and Hansley v. Railroad Co.,
supra, are in seeming conflict; but, when carefully
considered, it will be seen that the court reached the
correct conclusion in each of them. In the case of Purcell v.
Railroad Co., the intentional wrong of the defendant was the
direct cause of the injury; while in the case of Hansley v.
Railroad Co., an efficient cause intervened, to wit, the
breaking of the axle, which was not intentional.
The
second question raised by this exception is whether the
testimony therein mentioned should have been excluded on the
ground that it tended to prove damages that were too remote.
The subject of proximate and remote damages has been prolific
of discussion by text writers and judges. It has frequently
been before this court for consideration, and it has been
found difficult to formulate a general rule by which each
case could be determined. In the case of Harrison v.
Berkley, 1 Strob. 525, which was an action for damages
against a shopkeeper who sold liquor to a slave, in violation
of the statute, in consequence of which he became
intoxicated, and died from exposure, the rule is thus stated:
"Only the proximate consequences shall be answered for.
2. Greenl. Ev. 210, and cases there cited. The difficulty is
to determine what shall come within that designation. The
next consequence only is not meant, whether we intend thereby
the direct and immediate result of the injurious act, or the
first consequence of that result. What either of these would
be pronounced to be would often depend upon the power of the
microscope with which we should regard the affair. Various
cases show that in search of the proximate consequences the
claim has been followed for a considerable distance, but not
without limit, or to a remote point. 8 Taunt. 535; Peake,
205. Such nearness in the order of events, and closeness in
the relation of cause and effect, must subsist, that the
influence of the injurious act may predominate over that of
other causes, and shall concur to produce the consequence, or
may be traced in those causes. To a sound judgment must be
left each particular case. The connection is usually
enfeebled, and the influence of the injurious act controlled,
where the wrongful act of a third person intervenes,
and where any new agent, introduced by accident or design,
becomes more powerful in producing the consequences than the
first injurious act. 8 East, 1; 1 Esp. 48. It is therefore
required that the consequences to be answered for should be
natural, as well as proximate. 7 Bing. 211; 5 Barn. & Adol.
645. By this I understand, not that they should be such as
upon a calculation of chances would be found likely to occur,
nor such as extreme prudence might anticipate, but only that
they should be such as have actually ensued, one from
another, without the occurrence of any such extraordinary
conjuncture of circumstances, or the intervention of any such
extraordinary result, as that the usual course of nature
should seem to have been departed from. In requiring
concurring consequences, that they should be proximate and
natural, to constitute legal damage, it seems that, in
proportion as one quality is strong, may the other be
dispensed with; that which is immediate cannot be considered
unnatural; that which is reasonably to be expected will be
regarded, although it may be considerably removed. Bennett v.
Lockwood, 20 Wend. 223." Leaving the depot was the
natural consequence of the defendant's failure to provide
transportation for the plaintiff from Aiken to Edgefield;
and, in view of the frequency and suddenness with which storm
arise in this country, it cannot be said that the injury from
the storm was "the intervention of any such
extraordinary result as that the usual course of nature
should seem to have been departed from." At least, this
was a question to be determined by the jury. More than one
inference could have been drawn from the testimony, and, when
this is the case, it is always a matter for the consideration
of the jury. This exception is overruled.
The
second exception is as follows: "(2) That his honor
erred in permitting the plaintiff, whilst a witness on the
stand, against the...
