Shealey v. South Carolina & G. Ry. Co.

• Decision Date: 08 July 1903
• Citation: 45 S.E. 119,67 S.C. 61
• Parties: SHEALEY v. SOUTH CAROLINA & G. RY. CO.
• Court: South Carolina Supreme Court

45 S.E. 119

67 S.C. 61

SHEALEY v. SOUTH CAROLINA & G. RY. CO.

Supreme Court of South Carolina

July 8, 1903

Appeal from Common Pleas Circuit Court of Aiken County; Gage, Judge.

Action by Bennett Shealey against the South Carolina & Georgia Railway Company. From judgment for defendant, plaintiff appeals. Affirmed.

Croft & Lamb, for appellant. Jos. W. Barnwell, B. L. Abney, and Hendersons, for appellee.

JONES J.

In this action plaintiff sought to recover damages for personal injuries alleged to have been sustained by him while a passenger on defendant's train at Langley, S. C., August 3, 1900, through the negligence of defendant, alleged to consist in (1) failing to stop the train at Langley Station for a time sufficient to allow plaintiff to alight therefrom (2) suddenly causing the train to move forward with a jerk while he was on the steps of the passenger coach for the purpose of alighting, thereby bruising, twisting, and straining his right ankle. The jury rendered a verdict in favor of the defendant, and from the judgment thereon plaintiff has appealed the first exception alleges error in allowing the witness H. W. Colson to testify that it was the custom or practice of the defendant company to destroy all ticket stubs after 60 days. One of the issues being as to the length of time the train stopped at Langley, the defendant, besides offering direct testimony on that point by the conductor and others, sought to show stoppage for a reasonable time by offering testimony as to the number of cash fares and tickets taken up by the conductor to and from Langley on that train and that time was sufficient to allow such other passengers opportunity to get off and on. No one had called for the production of the original tickets or the stubbook, but nevertheless defendant sought to explain their absence by showing the practice of the defendant company to destroy them after a certain time. On this point the only ruling made by the court was that, "if the witness knows what the practice is, he can testify to it"; and in response to the question the witness answered that the practice is to destroy the tickets and stubbooks after 60 days. Under the court's ruling, the testimony of the witness as to such practice was limited to the witness' knowledge, and error cannot be imputed to such ruling because it afterwards developed on cross-examination that the witness' knowledge was derived from what the custodian of the tickets told him as to the practice. No motion to strike out the testimony as hearsay was made. This exception is overruled.

The second and third exceptions impute error in not charging plaintiff's third and fourth requests to charge, which are as follows:

"(3) The jury is further charged that the mere fact that the conductor of a train stopped the cars a reasonable length of time for passengers to alight therefrom will not be always sufficient to exonerate the company from damages for an injury sustained by a passenger while alighting by reason of the train starting off. The railroad company must go further and satisfy the jury that they used reasonable care, before starting its train, to ascertain that no passenger was in the act of alighting, or in a position that would be perilous if the train started.

(4) It is the duty of a railroad company to stop its trains at stations a reasonable time, sufficient for its passengers exercising reasonable diligence to alight from its cars in safety; and it is likewise their duty, before starting its train of cars again, to exercise reasonable care to ascertain that no passenger is in the act of alighting, or in a position that is perilous if the train should start. And you are further charged that if a conductor in charge of a train starts it off after waiting a reasonable length of time, whereby a passenger is injured while in the act of alighting, the company will still be liable in damages, if the conductor, by exercise of reasonable care, could have known that a passenger was in the act of alighting, but failed to do so."

The defendant also presented a request to charge in that connection in these words:

"(1) That the duty which the conductor of a railway train owes to a passenger who desires to get off at a given station upon his arrival there is to announce the station, and stop his train for a sufficient length of time to allow passengers on the train to disembark, and those who desire to get on the train to do so, and the question of what is a sufficient length of time is one for the jury to pass on. The conductor is not bound to see that the passengers desiring to disembark at the particular station at which the train has stopped have in fact gotten off; but, after waiting a sufficient length of time to afford them an opportunity to get off, he may presume that they have done so, and then, unless he sees some one in the act of getting on or off or in some perilous position, he may signal his train, and go ahead on his journey."

The court charged the following in substitution of plaintiff's third and fourth request and defendant's first request:

"A railroad company engaged in carrying passengers for hire is held to the exercise of the highest degree of care in that business. The carriage extends from the incipient reception of the passenger on the cars to his disembarkation therefrom on the place provided for his reception. The jury must fix the standard of the highest degree of care, and inquire if the railroad company came up to it or fell short of it. The statute law requires the company shall cause its trains to entirely stop at a station 'for a time sufficient to let off passengers.' Section 2134. What is a sufficient time? is a question for the jury under all the circumstances of each case. When the train stops, what must the conductor do, if anything, to secure the disembarkation of passengers? He must stop a time sufficient to let them off. The statute law so declares. But it would be an assumption of your powers by me to charge you he should or not look to see if the passengers have disembarked, or to charge you he should do any other specific act. The jury must take into consideration the speed of trains, the distance

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