Thompson v. Atlantic Coast Line R. Co.

• Decision Date: 26 January 1920
• Docket Number: 10343.
• Citation: 102 S.E. 11,113 S.C. 261
• Parties: THOMPSON ET AL. v. ATLANTIC COAST LINE R. CO. ET AL. KELLERS ET AL. v. ATLANTIC COAST LINE R. CO. ET AL.
• Court: South Carolina Supreme Court

102 S.E. 11

113 S.C. 261

THOMPSON ET AL. v. ATLANTIC COAST LINE R. CO. ET AL.

KELLERS ET AL. v. ATLANTIC COAST LINE R. CO. ET AL.

No. 10343.

Supreme Court of South Carolina

January 26, 1920

Appeal from Common Pleas Circuit Court of Charleston County; J. W De Vore, Judge.

Actions by Gertrude B. Thompson and husband, and by Edyth Kellers and husband, against the Atlantic Coast Line Railroad Company and others. Judgments for plaintiffs, and named defendant appeals. Affirmed.

Rutledge & Hyde, of Charleston, for appellant.

Logan & Grace, of Charleston, for respondents.

FRASER J.

The appellant, in its argument, thus states its case:

"It appears that the action was for damages due to personal injury, nervous shock, etc., alleged to have been sustained by the plaintiffs while passengers on a train of the defendant, consisting, among other things, of the Pullman car upon which the plaintiffs were riding.

Both plaintiffs claiming to have been injured in the same accident and the allegations of negligence being the same in both cases and the defenses the same, the cases were tried together. A verdict of $10,000 was awarded to plaintiff Mrs Thompson, and a verdict of $100 was awarded the plaintiff Mrs. Kellers. The allegations of negligence in each case were as follows:

(a) In failing and omitting to take care to prevent derailment.

(b) In not adopting the proper safeguards to protect said train and car so that said accident would not have happened.

(c) In causing and allowing said train and car to be derailed.

The allegation of injury in the case of Mrs. Thompson was as follows:

'That she was thrown from the place occupied by her, and that she had her infant child in her arms, and that she was thrown with such force and violence against said car that she was rendered unconscious, and her head badly bruised and her side and back fearfully wrenched, jerked, and strained, and was seriously and permanently injured, suffered a fearful and terrible mental and bodily shock, and she was rendered almost a complete nervous wreck by reason of her injuries, and the frightful and awful experiences resulting from her injuries and shock; that plaintiff had only recently come out of a hospital in the city of Washington, where she had been treated for illness, and in consequence was utterly unable to withstand the agonizing and fearful shock to her mental and bodily system by reason of the jolt, jerk, and jar caused by the derailment of said train.'

The allegations of injury in the case of Mrs. Kellers were:

'That her right arm was fearfully bruised, jerked, and strained, her back badly wrenched, and her nervous and bodily system frightfully shocked and injured, she was seriously and permanently injured and (that she) was rendered an almost complete nervous wreck by reason of her injuries, and the frightful and awful experiences resulting from her injuries and shock, and will be otherwise injured.'

Argument.

Coming directly to the consideration of the first exception which complains of the ruling of the court in permitting a question to be asked Dr. A. E. Baker, physician of the plaintiff, with reference to a serious physical condition from which the plaintiff had suffered, not set out in the complaint, and entirely different from any allegation of injury therein complained."

I. The testimony of Dr. Baker referred to the "mental and bodily" injury of Mrs. Thompson, which was the result of the injury. It included the loss of an unborn child, which was not the subject of the action. The testimony tended to prove the extent of the plaintiff's injuries and was competent. The testimony tended to show that the injuries caused the premature birth, and the premature birth was cause of the permanent injuries, i. e., the wreck was the proximate cause of the plaintiff's injuries. The testimony was competent, and this exception is overruled.

II. The appellant thus states the second question:

"The second exception assigns error in overruling the motion of the defendant railroad company having nonsuit made upon the ground that there was a total failure of evidence to support the allegation of negligence and specifications thereof alleged in the complaint."

When a passenger is injured by an instrumentality of the common carrier, there is a presumption of negligence. How much testimony is necessary to overcome this presumption is a question of fact for the jury. McLeod v. Railroad Co. 93 S.C. 71, 76 S.E. 19, 705.

Mrs Thompson, one of the plaintiffs, said, "What is the matter with this train; it rocked and pitched all night?" Did it rock and pitch all night? Mrs. Thompson was in the drawing room of a Pullman. Would a man of ordinary prudence, who was exercising due care, know that something was wrong when the Pullman rocked and pitched all night? If the jury thought so, then there was evidence from which the jury could infer...