Poliakoff v. Shelton, 15057.

• Citation: 8 S.E.2d 494
• Decision Date: 08 April 1940
• Docket Number: No. 15057.,15057.
• Court: United States State Supreme Court of South Carolina
• Parties: POLIAKOFF . v. SHELTON.

8 S.E.2d 494

POLIAKOFF .
v.
SHELTON.

No. 15057.

Supreme Court of South Carolina.

April 8, 1940.

[8 S.E.2d 494]

Appeal from Common Pleas Circuit Court of Anderson County; G. Dewey Ox-ner, Judge.

Action by Mrs. Rachael Poliakoff against W. M. Shelton for injuries sustained by the plaintiff while she was riding on a bus of the defendant. From a judgment granting motion for direction of verdict for defendant and the setting aside of jury's verdict for the plaintiff, the plaintiff appeals.

Affirmed.

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.

[8 S.E.2d 495]

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...