Wallingford v. Columbia & G.R. Co.

• Decision Date: 11 March 1887
• Parties: WALLINGFORD and another v. COLUMBIA & G. R. CO.
• Court: South Carolina Supreme Court

2 S.E. 19

26 S.C. 258

WALLINGFORD and another v. COLUMBIA & G. R. CO.

Supreme Court of South Carolina

March 11, 1887

Appeal from circuit court, Abbeville county.

Benet & Smith and John C. Haskell, for appellant.

Parker & McGowan, for respondents.

SIMPSON C.J.

The plaintiffs, (respondents,) some time in 1884 shipped certain live-stock on the Louisville, New Albany & Chicago Railway Company, under a special contract, from Bloomington to Louisville station; the destination of the stock being Abbeville Court House, South Carolina. From Louisville station the stock reached Seneca City, South Carolina, via Atlanta, Georgia. From Seneca they were transported by the defendant company to Hodges in the same car in which they came from Atlanta, and thence to Abbeville Court House. The freight was paid at Abbeville to the agent of defendant company at that point. The stock was found greatly injured at Hodges, alleged by the plaintiffs to have been caused by the defective box car in which they had been transported, and the negligence of the engineer; and at Hodges two of said horses fell between the cattle-shute and the car, because of negligence in building the shute too far from the track causing injury. Upon full hearing the jury found for the plaintiffs $450. The appeal raises no question as to the fact of injury, nor as to the amount of the damages, nor is it denied that said injury was occasioned in consequence of the defective car in which the stock was transported. These facts, it is agreed, were established by the verdict. The defendant claims exemption, however, under a contract in writing between the Louisville, New Albany & Chicago Railroad and the plaintiffs, introduced in evidence on the cross-examination of plaintiffs' witness, and also upon the ground that defendant company should not be responsible for the defective car in which the horses were transported from Seneca to Abbeville; it being the same car in which they had come from Atlanta. The defendant moved for a moved for a nonsuit at the close of the plaintiffs' testimony, which was refused.

The appeal involves a question of error assigned to this refusal and also the refusal to charge certain propositions requested, and certain propositions charged, on the two matters above, to-wit, the written contract, and the defendant's responsibility for the defects in the Atlanta car. The motion for nonsuit was made upon two grounds:

" First, because the plaintiffs failed to adduce any evidence of negligence on the part of the defendant, inasmuch as the defendant had merely hauled the car received from the connecting railroad, the air-line; the defects which caused the injuries alleged being in said cars." This assumed (which was no doubt true) that the car was dangerously defective when the defendant company received it at Seneca City, and that the injuries sustained resulted from said defect. The responsibility of a common carrier is to transport safely and securely, which includes, as to railroad common carriers, the necessity of having safe appliances, cars, machinery, etc.; and we know of no principle of law which would allow them, when damage is done by a defective car, to shield themselves upon the ground that said car belonged to and was used by another company. When the car here was received by the defendant, it was adopted as a part of the defendant's train, and defendant then became as fully responsible for its character, etc., as if it were their own car. It would be a very dangerous doctrine, indeed, to say that because one railroad company had gone through with defective and dangerous cars, passenger coaches, etc., without damage, that therefore another company, using said defective car with damage, should escape liability. The case of Felder v. Columbia & G. R. Co., 21 S.C. 35, relied on by appellant, has no application here, as we conceive. In that case the effort was to make the defendant liable as a joint contractor with a connecting line, (evidenced by the sale of a through ticket,) whereby it was sought to make the defendant responsible for the default of another. But here the effort was to make the defendant responsible for injury done on its own road, resulting from its own negligence in transporting the stock in a dangerous car, and not for the negligence of another. We do not think that the fact that the car in question was an Atlanta car relieved the defendant, and therefore left the case without sufficient testimony to go to the jury.

" Second, because the plaintiffs offered no evidence to show that they had complied with the terms and conditions of the contract entered into between them and the defendant, but that, on the contrary, plaintiffs' testimony proved they had not complied with said terms and conditions." One defense of the defendant was that there was a written contract between the plaintiffs and defendant containing certain stipulations which had not been complied with by the plaintiffs. The fact of there being such a contract between the parties was denied by the plaintiffs; they contending that said contract was between themselves and the Louisville, New Albany & Chicago Railroad Company, with reference to the transportation of the stock from Bloomington to Louisville station, and no further. This was a question of fact, in part at least, and was a matter of defense. It is claimed, however, that it was introduced by defendant during the plaintiffs' testimony, in the cross-examination of one of their witnesses, or at least that it was in before the defendant was put to the defense. A nonsuit is proper when there is a total absence of evidence as to some one or all of the material allegations in the complaint constituting the cause of action. Here the plaintiff relied upon certain alleged facts as constituting their cause of action, and introduced testimony in support of these allegations. The defendant claimed, as matter of defense, that plaintiffs' real cause of action, if any, was the contract which defendant interposed; and that, having failed to show compliance with this contract on their part, they should be nonsuited. This seems to us to be stretching the doctrine of nonsuit further than ever claimed before. It amounts to this: that if, by some accident or skill in defendant's attorney, he can get in evidence during the plaintiff's testimony in support of his defense, that then, unless plaintiff shall overthrow by affirmative proof said defense before he closes, that he shall be nonsuited. The objection to this proposition is that there would be too many facts taken from the jury, and left to the court. Before the court could act it would first have to find, as matter of fact, that the defense had been established, because the plaintiff is not called upon to meet the defense until it is proved, at least prima facie. In nonsuits the court is not authorized to weigh evidence, but to determine whether any evidence has been introduced. Here, then, even admitting that there was a contract, and that the defendant had proved it in the opinion of the court, yet the plaintiffs had the right to go to the jury on that question as a matter of fact, and the judge could not assume it, thus taking it away from the jury, and then nonsuit the plaintiff, because there was a total absence of testimony to overthrow it, or, in this instance, a total absence on the point whether plaintiffs had complied with the stipulations contained in the contract.

This brings us to the exceptions complaining of his honor's refusals to charge.

Before discussing these exceptions, it would be well to state some of the principles of law applicable to common carriers, about which there is little or no doubt. At common law there is no exemption to the liability of common carriers for goods etc., intrusted to them, except for an act of God or of the king's enemies. They are regarded as insurers as to all else. In England, however, and in several of the states of this Union, including our own, (South Carolina,) the common-law doctrine was modified to the extent of allowing a common carrier to exempt himself from this broad liability by special contract, as to certain specified causes of injury. See, in this state, Swindler v. Hilliard, 2 Rich. 286, and Baker v. Brinson, 9 Rich. 202, and other cases which need not be cited. It was, however, held in all of the cases that he could not shield himself from the consequences of negligence by a contract; that his character as common carrier could not be changed by contract; only his liability, to the...