Poliakoff v. Shelton

• Decision Date: 08 April 1940
• Docket Number: 15057.
• Parties: POLIAKOFF v. SHELTON.
• Court: South Carolina Supreme Court

8 S.E.2d 494

193 S.C. 398

POLIAKOFF v. SHELTON.

No. 15057.

Supreme Court of South Carolina

April 8, 1940

Order of Judge Oxner follows:

At the conclusion of the evidence, defendant made a motion for a directed verdict which, by consent of counsel, was taken under advisement, and argued before me on January 23, 1939. Briefly stated, said motion was upon the ground that the plaintiff failed to show any actionable negligence on the part of the defendant.

Most of the testimony related to the nature and extent of the alleged injuries sustained by plaintiff. The testimony as to how the alleged injury occurred is unusually brief and incomplete. The testimony offered by the plaintiff showing how her injury occurred may be concisely stated as follows: Defendant operated a bus line between Greenville and Anderson. Plaintiff purchased a ticket at Greenville and at the time of her injury was a passenger on said bus between Greenville and Anderson. While the bus was quietly traveling along the highway and nothing unusual happened, a suitcase fell from above and struck the plaintiff upon her left shoulder. The plaintiff was sitting at the time on the bus in a seat adjoining the aisle and her brother was sitting next to her by the window. She states that no one was standing or handling baggage at that time. Plaintiff states that she does not know where the suitcase came from except that it came from "above". This is substantially all the testimony offered by the plaintiff upon the question as to how her injury occurred. The record is entirely silent as to whether the bus contained a rack on the inside for holding baggage; as to whether any baggage was brought into the bus and, if so, when; as to whether any baggage on the inside of the bus was under control of the bus driver or the passengers; as to who placed the suitcase which fell upon her in the bus, how it was placed, or what caused it to fall from the rack, if there was a rack. In short, the only fact that we have is that a suitcase fell and struck her on the shoulder.

It is well settled in this, as well as other jurisdictions, that a carrier owes to a passenger the highest degree of care. It is further well settled that negligence is not presumed from the bare fact that a passenger has been injured while being transported by the carrier. The correct rule in South Carolina is stated in Anderson v. South Carolina & G Railroad, 77 S.C. 434, 58 S.E. 149, 150, 122 Am.St.Rep. 591 as follows: "According to the rule in this state, there is no presumption of negligence on the part of the carrier from the bare fact that a passenger has been injured while on the carrier's train, but that such presumption does arise on proof of such injury 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 instrumentalities of transportation."

Illustrative of this rule, it was held in the foregoing case that the presumption of negligence does not apply to injury from acts of fellow passengers without knowledge of the existence of the danger or of the facts and circumstances from which the danger may be reasonably anticipated.

The first question for determination is whether or not under the foregoing rule there is any presumption of negligence on the part of the carrier from the facts disclosed by the testimony. There is no testimony that the suitcase in question was brought into the bus by any agents of the defendant and there is no testimony that this suitcase was under the control of the carrier. Under these circumstances the injury did not result from an agency or instrumentality of the carrier, nor in some defect in the instrumentalities of transportation, and there is no testimony that it resulted from some act on the part of the servant of the carrier. It seems to me clearly under the foregoing rule that the presumption could not apply in this case. While there is no case directly in point in South Carolina where this question is involved, it has been uniformly held in other jurisdictions, as disclosed by the authorities hereinafter referred to, that there is no presumption of negligence in a case of this kind. The next question for determination is whether or not there is any evidence of negligence on the part of the defendant, and in the determination of this issue, I am not unaware of the fact that negligence may be proved by circumstantial, as well as direct, evidence. But there must be some testimony from which negligence may be reasonably inferred. The doctrine of res ipsa loquitur does not prevail in South Carolina and no supporting authority is necessary for this statement.

The case of Creahan v. Pennsylvania Railroad, 123 Pa.Super. 268, 187 A. 51, is very similar in facts. The court states the facts as follows: "Plaintiff was injured while a passenger for hire in a coach on one of defendant's trains by the falling of a satchel from a rack over her head. The bag was a small one which had been placed in the rack by a fellow passenger and contained only a few articles of wearing apparel and toilet articles intended for overnight service. She entered the coach in Pittsburgh, and the train had proceeded a few miles when, while the train was rounding a curve, the satchel became dislodged and fell upon her head. *** She neither gave nor furnished any evidence to indicate that there was anything defective or of improper construction in the rack, or that the train was operated in a negligent or unusual manner. There was no evidence of failure upon part of any of the defendant's agents or employees to inspect the baggage in the rack. In short, the plaintiff relied for proof of negligence solely upon the fact that the satchel did fall and that she was injured as a result of being struck by it."

After stating the facts, the court in part said:

"While there is no evidence in the case indicating that the baggage was not carefully placed in the rack in a secure position other than the fact that it fell, if we assume that the bag was not securely placed in position, it was a fellow passenger, and not the carrier, who placed it, and it was he who was primarily liable for any consequences that may have resulted. The carrier having provided proper equipment for the accommodation of hand luggage, its responsibility with relation to the location of the baggage extended only to the duty of making a proper inspection. The fall of the baggage may have been due to any of many causes. It was incumbent upon the plaintiff to show that the dislodgment of the bag was due to some cause which ought to have been foreseen by the carrier. This she failed to do. ***

"The difficulty with plaintiff's case is that she tried it upon the theory that since she was a passenger for hire and was injured, the onus of rebutting a presumption of negligence was cast upon the defendant. Such is not the law unless facts are shown connecting the injury with failure of equipment or the operating processes of the carrier as we have more fully shown above."

It will be observed from the reading of the foregoing case that the rule in Pennsylvania was the same as ours as to the presumption where the injury resulted from something connected with the means or appliances of transportation. But the court held that the presumption did not apply under the above facts.

To the same effect is the case of Wade v. North Coast Transportation Company, 165 Wash. 418, 5 P.2d 985. It was there held that no negligence was shown from proof of the fact that an infant was injured by the fall of a suitcase from rack in motorbus. The suitcase fell when the bus was turning from one street into another.

In Morris v. New York Central R. Co., 106 N.Y. 678, 13 N.E. 455, the plaintiff, while a passenger, was injured by a wringer falling upon him from the rack above the seat. There was nothing extraordinary about the parcel, or its position in the rack, and nothing to attract particular attention to it, and it was not noticed by the servants of the carrier. The court held that a nonsuit should have been granted.

In Whiting v. New York Central & H. R. R. Co., 97 A.D. 11, 89 N.Y.S. 584, 585, passenger was injured by a valise falling from a rack over her head. The court said:

"There was no evidence tending to indicate that the satchel was not securely placed in the first instance, or that at any time before it fell there was anything in its position to indicate that it was likely to fall. The fall was not occasioned by any sudden or unusual motion of the car. * *

" There being nothing extraordinary about either the satchel itself or its position in the rack to hold the defendant liable for negligence on mere proof that at some time in the course of a long journey, while the train was in ordinary motion, the balance became disturbed, so that the satchel was caused to fall, would be to hold the defendant liable as an insurer."

In speaking of a similar situation, the court, in the case of Louisville, Etc. R. Co. v. Rommele, 152 Ky. 719, 154 S.W. 16, 17, Ann.Cas.1915B, 267, said:

"The evidence shows that the conductor did not see the package in the rack, or have his attention called to its presence, and there is no evidence even tending to show that there was anything in the size or appearance of this package, or the manner in which it was placed in the rack, to attract attention or to put the conductor on notice that it was not a suitable package to put in the rack, or to indicate that the motion of the car might cause it to fall, or that carrying it in the rack would probably result in injury to a passenger on the contrary, we would say that it was just that sort of package in size, appearance, and weight for which racks in passenger cars are intended. ...