Southern Ry. Co. v. Nappier

• Decision Date: 10 April 1912
• Parties: SOUTHERN RY. CO. v. NAPPIER.
• Court: Georgia Supreme Court

74 S.E. 778

138 Ga. 31

SOUTHERN RY. CO. v. NAPPIER.

Supreme Court of Georgia

April 10, 1912

Syllabus by the Court.

There was no error in overruling the demurrer to the petition as amended.

It is the general duty of a railroad company to furnish sufficient room within its cars for all passengers whom it receives for transportation. Whether or not on a particular occasion the company was excused from performance of this duty by reason of some sudden emergency or unusual situation, which it could not have reasonably anticipated, and against which it could not have provided by the use of due care, or whether it was negligent in failing to provide a passenger with proper accommodation inside a car, so that he was compelled to ride on the platform, and was thereby injured, was a question for the jury.

(a) The presiding judge submitted this question to the jury. Some of the requests to charge were not accurate statements of the law as applicable to the evidence, and others were substantially covered by the charge given.

If a carrier furnishes a passenger with a safe and sufficient place to ride in its cars, generally such place is the proper one for the passenger to occupy. If by reason of the crowded condition of the car, or other justifying cause, he is upon the platform, instead of within the car, the question of his diligence or negligence is ordinarily one for the jury.

(a) In some cases the conduct of a passenger in leaving his seat in a car and going upon an open platform, while the train was running at high speed, without legitimate reason therefor has been so palpably negligent as to be dealt with as a matter of law.

Where suit was brought for an injury resulting to a passenger on a railroad train by being thrown therefrom while riding upon a platform of a car because it was claimed that the car was so crowded that he could not obtain entrance to it, and where it was contended that the company was negligent in not providing room for the passenger, thus causing the injury, there was no error in giving in charge the principle embodied in Civil Code 1910, § 2780, as to the presumption of negligence arising against a railroad company if it is shown that a person is injured by the running of a train, or by acts of the employés of the company in connection therewith.

Where in a suit for a personal injury to a passenger on a railroad train, resulting from his falling or being thrown from the platform of a car on which the passenger was riding, the only act of negligence alleged was the failure to provide him with suitable accommodations inside the car, thus compelling him to ride on the platform, there was no evidence of willful misconduct, malice, fraud, wantonness, or oppression, or of such entire want of care as would raise a presumption of conscious indifference to consequences, it was error to charge: "In every tort there may be aggravating circumstances, either in the act or in the intention, and, in that event, the jury may give additional damages, either to deter the wrongdoer from repeating the trespass, or as compensation for the wounded feelings of the plaintiff."

(a) In a case of the character indicated in the preceding headnote the mere fact that a ticket taker, in passing from car to car, said with an oath, "Give me your tickets," was not sufficient to authorize such a charge.

Where in a suit on account of a personal injury, damages were claimed for physician's bills, permanent injury resulting in loss of money, and pain and suffering, it was error to charge broadly: "In some torts the entire injury is to the peace, happiness, or feelings of the plaintiff. In such cases no measure of damages can be prescribed, except the enlightened conscience of impartial jurors."

Where the plaintiff alleged that at the time his ticket was taken up by the conductor, he requested the latter to furnish him with a place in the car, and the evidence showed no request of any agent for that purpose, the fact that the evidence disclosed that the tickets of passengers were taken up by an auditor or ticket agent did not alone constitute such a material variance as to prevent a recovery, if the plaintiff was otherwise entitled thereto.

Where the sole act of negligence alleged was a failure to provide a proper place for a passenger to ride in a car, thus causing him to ride on the platform, from which he was thrown by the swaying or motion of the train, and there was no allegation that such swaying or motion was in itself negligent, the presiding judge should have so instructed the jury on request.

After the conductor, as a witness for the defendant, had testified that he did not go out on the platform of the car and take up the tickets from the plaintiff or others, and in fact did not take up any tickets on that train, there was no error in allowing him to testify on cross-examination that the auditor took up the tickets.

While in one or two other minor respects portions of the charge may have been subject to criticism, they were of such a character as to require no detailed discussion, and they are not likely to occur again.

Error from Superior Court, Butts County; R. T. Daniel, Judge.

Action by Jesse I. Nappier against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Jesse I. Nappier brought suit for damages against the Southern Railway Company, alleging, in substance, as follows: On November 22, 1909, he was in the city of Jackson, Ga. He purchased from the agent of the defendant at that place a ticket for the town of Jenkinsburg, a station on the line of the defendant. He entered safely upon the train of the defendant as far as the platform, and attempted to get on the inside of the car to a seat. While he was doing this, the train moved off on its regular schedule. He observed every precaution in riding on the outside of the passenger coach, and tried to gain admission thereto, but could not get inside the car, on account of the crowd of people therein. The distance from the point where he boarded the train to the point of his destination was about five miles. While he was thus standing on the platform of the car, the conductor came to the plaintiff and others, and asked for their tickets. When plaintiff delivered his ticket to the conductor, he at the same time demanded entrance to the car. The conductor accepted the ticket, but "made no effort to get or allow petitioner to get inside the car to a seat and greater place of safety." While standing on the platform and endeavoring to take care of himself as best he could, and when within about a mile of the station where he expected to leave the train, he was violently thrown from the car by reason of his inability to longer hold on to the supports which he had grasped. By reason of the violent swaying and rocking of the car, and its crowded condition, he lost his hold, and fell to the ground, causing him serious injury. He has endured much pain and suffering and has been put to the expense of a physician's bill of $200. He was a healthy and vigorous man, 28 years of age at the time of the injury, and was earning $35 to $40 per month. He has been permanently injured, and his earning capacity destroyed. The allegation as to the respect in which the defendant was negligent was as follows: "Your petitioner alleges that said railway company was careless, negligent, and failed to perform its duty to your petitioner, in that it, by and through its agents, the conductor of said train, its auditors, porters, and other employés of said company, failed, neglected, and absolutely refused to provide a place of safety on the inside of said car for your petitioner, after accepting the ticket for his passage to the point of destination, which acts, neglect of duty are here charged as cause of petitioner's injury." The defendant demurred to the petition. An amendment was made amplifying an allegation in regard to the failure to furnish sufficient room in its cars. The demurrer was overruled, and exceptions pendente lite were filed.

The defendant denied the substantial allegations of the petition, and alleged that it exercised all due care and diligence, that the plaintiff himself was negligent, and that, if the defendant was negligent the plaintiff could have avoided the consequences thereof by the exercise of ordinary care and diligence.

On the trial the jury found for the plaintiff $1,000. Defendant moved for a new trial. The motion was overruled, and it excepted.

Harris & Harris, of Macon, for plaintiff in error.

Y. A. Wright and J. T. Moore, both of Jackson, and Moore & Branch, of Atlanta, for defendant in error.

LUMPKIN, J. (after stating the facts as above).

1. There was no error in overruling the demurrer to the petition as amended.

2. It is the general duty of a railroad company to furnish sufficient room within its cars for all passengers whom it receives for transportation. 2 Hutchinson on Carriers (3d Ed.) § 1113. Similar to this is the rule that the carrier by the customary conveyances used in land travel is usually bound to furnish a passenger with a seat. This is sometimes declared by statute; sometimes held to arise from the contract of carriage. Civ. Code 1910,§ 2723; 1 Fetter, Carriers of Passengers, § 251. It has been declared that railroad companies cannot refuse to carry those who apply to be carried or those who entitle themselves to be carried by procuring tickets, because of the want of room. It is said that this is so because the trains may have additional coaches attached to them for the accommodation and carriage of as many as may apply. But it has also been said that this rule should not be enforced if the refusal to receive and carry was bona fide on account of some unexpected or...