NELSON v. CHARLESTON & WESTERN CAROLINA RAILWAY

The opinion of the Court was delivered by

Mr. Justice Fraser.

This is an action for actual and punitive damages. The complaint alleges that the plaintiff is a commercial traveler, selling goods by sample on commission and in the discharge of his regular business was on March 3, 1909, at Fountain Inn, which was a town situated along the route between Greenville and Laurens, over which the defendant operates its train; that having paid his fare, plaintiff took passage at Fountain Inn on a mixed train to go to Laurens; that between Fountain Inn and Owens Station, a flag station, the train was wrecked because of a breakdown of a freight car which was a part of the train of cars; that by reason of the wreck thus caused, the plaintiff was injured in his person painfully and permanently.

5th. “That because of the said acts of the defendant this plaintiff was bruised and injured about the body and made sick, so that he was unable for many days to prosecute his regular or other business, and was caused to spend money for medical and other attention; all to his serious damage.

6th. “That defendant was careless, wanton, wilful and negligent in its conduct towards this plaintiff in the particulars hereinafter mentioned:

“(a) That defendant knowingly permitted an overloaded and defective freight car to be hauled along in said train at a high and dangerous rate of speed, the breaking of which freight car caused the wreck.

“(b) That after the wreck had occurred and plain,tiff had been dragged in a rough and dangerous manner and injured, as above described, and had gotten out of the passenger car, at the suggestion of defendant, he walked towards Owings Station, which was less than a mile ahead of the wreck, with the understanding with defendant that if the engine and certain box cars which were not thrown from the track pulled loose and came on towards Laurens, the said engine and box cars would be stopped in order to take plaintiff up and carry him to his destination; that it was promised by defendant that if the engine should overtake plaintiff before reaching said station, it would stop and take him up; that when within about one hundred yards of said station said engine, with two or more box cars, did overtake plaintiff, who signalled same to stop, but defendant paid no attention and failed and refused to take plaintiff on board and left him.

“(c) That plaintiff is informed and believes. that said engine and box cars at that time went only to Gray Court, a mile or two below; but they soon came back to the place of the wreck, and upon its return from said place, going towards Laurens, plaintiff again signalled the train to stop at Owings Station in order that he might get aboard; but defendant failed and refused so to stop, and the train again left him twelve or fourteen miles from his destination; though plaintiff is informed and believes that said train did go through to Laurens and carried other passengers than himself; that it then being night, plaintiff was compelled to hire a conveyance and travel twelve or fourteen miles through the country to his destination on a very cold night, which might easily have been prevented if the defendant had discharged its duty towards this plaintiff.

7th. “That said conduct of defendant towards this plaintiff was wilful, high-handed and a reckless disregard of plaintiff’s rights as defendant’s passenger and much to his damage.”

The defendant admits that plaintiff was a passenger and that there was a wreck, but denies that plaintiff was injured by reason of the wreck, and alleges that if plaintiff subse quently became sick, it was due to his own conduct and was not due to any agency or instrumentality of the defendant.

The jury found a verdict for the plaintiff for five hundred dollars;

There are fifteen exceptions (which will be reported), but the appellant groups them under nine heads.

1. The first group complains of error in the admission of the statements of witnesses, Mrs. DuBose and W. H. Hinds, over objection of defendant’s counsel, in which they were permitted to testify that in their opinion the train was running fast and too fast without any facts upon which they based such opinions.

This testimony was more an estimate of speed than an opinion. The rate of speed was testified to by the plaintiff, the conductor, the engineer and the fireman. To allow the witness to state whether the train was running fast or too fast, is fully authorized by the rule laid down in Jones v. Fuller, 19 S. C., page 70, where the Court says: “While it is necessary that the witness should first state the facts upon which he bases his opinion, where the facts are such as are capable of being reproduced in language, it is not necessary to do so where the facts are not capable of reproduction in such a way as to bring before the minds of the jury the condition of things upon which the witness bases his opinion.”

It is by no means clear from the record that the evidence objected to was not brought out by defendant’s counsel. If it was, then defendant could not object to the testimony brought out by its own counsel. It is, however, stated in argument, that the record must be erroneous as an attorney of Mr. Cooper’s ability would not have asked such a question. The presumption is very strong, as Mr. Cooper is a very able lawyer, but, however strong, it cannot be allowed to contradict the record. To allow it to do so would give to able and experienced counsel an advantage over their less able and experienced brethren that the law does not allow. In the Courts at least “all men are equal.” These exceptions are overruled.

2. Exceptions 4, 5 and 9 are combined.

These exceptions complain of error in allowing the testimony as to what the conductor said the next day.

The testimony tended to show that the conductor, who certainly was the agent of the company, was still engaged in the business óf the wreck and went to theplaintiff for the purpose of getting a statement from him as a part of his official duties in connection with the wreck. An agent is rarely if ever commissioned expressly to make admissions of responsibilty, but it would be monstrous to hold that an agent to get admissions could make none. These exceptions are overruled.

3. The next exception, No. 6, complains that his Honor, the presiding Judge, erred in his modification of plaintiff’s third request to charge, as follows: Where a passenger is on a railroad train and gets hurt and it is shown that he is hurt on the railroad train, then the presumption is that it was done through the negligence of the railroad company, in -that his Honor omitted the important requirement that the evidence must show that the injury was caused by the agency or instrumentality of -the company. The plaintiff’s request contained the words “agency or instrumentality.” This was a serious omission and would have entitled the defendant to a new trial if the defendant had not made a request to charge that embodied the same omission.

The sixth request to charge was as follows: “6. The fact, if it be a fact, that the plaintiff is in a railroad wreck, does not at all entitle him to a verdict. (By the Court: That is just simply from that fact, nothing else appearing.) He must not only show that he was in a wrecked train, but must go further and prove to your satisfaction by a preponderance of the evidence that he was injured, and the extent of his injtiries. There is no presumption of law that a party has been injured because he was in a wreck; that is a matter of proof, the burden being on the plaintiff in all cases to establish his injury and the extent of it.”

In a wreck, as at other times, the injury must be through the agency or instrumentality of the defendant. When a party has asked the Court to charge an erroneous proposition of law, he cannot be heard to complain that the Court has followed him into error. This exception is overruled.

á. The tenth exception complains of error upon the part of the trial Court in charging the jury that a wreck is not one of the inconveniences which a passenger assumes and where it is shown that a passenger is injured by that cause, it is a natural and reasonable inference that the injury was the result of negligence inferred from the mere fact that the wreck occurred, in that this was a charge on the facts in violation of the Constitution. This exception is overruled.

It is true in a case of a wreck, as in all other cases, that where a passenger is injured by an agency or instrumentality of the company, the fact raises a presumption of negligence on the part of the company. There is no intimation here that any part of the wreck was not an instrumentality of the railroad company.

This exception is overruled.

5. The seventh exception complains of error in that his Honor charged as follows: • “If an engineer wilfully or intentionally fails, or refuses to see a passenger at a flag-station, the passenger may recover punitive damages. Also if the conductor promises to hold the train and does not.” The appellant admits in argument that while this as a general proposition may be correct, yet under the extraordinary condition of affairs, it was error. The extraordinary condition being the wreck. Appellant says it was the first duty of the train crew to have the obstruction removed and this they were bound to discharge and did discharge. This position is wholly unten able. The first duty of the train crew was to the passengers and this first duty they neglected absolutely, although one of the passengers was a lady, traveling alone in search of medical help, and it was known to the conductor by his own testimony.

This exception is overruled.

6. The eighth and thirteenth exceptions complain that there was no evidence upon which to base a verdict for punitive damages. These exceptions are overruled. There was evidence sufficient.

7. Exception 14 complains of error in not charging that plaintiff could not recover for loss of commissions. This was practically charged under defendant’s twelfth request to charge, where his Honor charged the jury “that the plaintiff cannot recover any alleged pecuniary loss except such as he proved to you in dollars and cents; he cannot leave you to speculate and you cannot arrive at your verdict as to such items by speculation if he claims any such loss and has failed to give you evidence as to the items and amounts thereof or such facts as would enable the jury to ascertain same, you cannot include same in your verdict.”

8. The twelfth exception complains of error in not charging without explanation the following: “There is no statute law in this State regulating the speed at which a train shall be run and the mere fast running of a train is not negligence per se and .cannot be held to be wilful.”

The Court said: “That is for the jury to say in each case, whether under the circumstances, whether a train running at a certain speed under certain circumstances, was negligent running or not. You are to be the judges of that particular case.”

That explanation submitted to the jury only the question of negligence and eliminated wilfulness from any speed however great.

This exception is overruled.

9. The fifteenth exception complains of error in the refusal of a new trial upon the ground that the verdict was excessive.

This exception is overruled because this Court cannot consider the question of excessive verdicts.

The judgment of this Court is that the judgment of the Circuit Court be affirmed.

Mr. Justice Hydrick concurs in the result.

Mr. Justice Woods.

I agree that the judgment in this case should be affirmed, but I am unable to concur in all the reasoning of Mr. Justice Fraser.

The pleadings indicating the issues are set out in his opinion. The plaintiff having testified that the day after the wreck the conductor of the train came to him with a paper which he requested the plaintiff to sign, and that he refused to read or sign it, over the objection of the defendant, this question and answer were admitted.

“Where did Capt. Tittle tell you the next day that the train went that night ? He said it went to Gray Court from Owens and the second trip it came from there to Taurens, carrying some live stock and negroes, leaving the white folks up in the woods. Now that is the way he did.”

There was no evidence that the conductor was authorized to settle plaintiff’s claim or even that he knew there was a claim. The alleged statement was made a day after the wreck, and, therefore, was not a part of the res gestae. Under such circumstances the testimony was clearly incompetent, unless all the authorities on the subject are to be overruled. Petrie v. Columbia & Greenville R. R. Co., 27 S. C. 63; Garrick v. Florida Central & Peninsular R. R. Co., 53 S. C. 448; Mars v. Virginia Home Insurance Co., 17 S. C. 514; Vicksburg & Meridian R. R. Co. v. O’Brien, 119 U. S. 99, 30 L. Ed. 299. Author ity of an agent to ascertain merely the existence or nature of a claim implies no authority to adjust the claim or to make admissions binding on the principal. I think, however, that tl’je error admitting this testimony should not work a reversal, because the conductor in his testimony, while denying that he made the statement attributed to him by the plaintiff, practically admitted and explained the acts embraced in the alleged statement. He testified that he did attach his engine and tender to a car at Gray’s Court, on which there were some negroes and live stock, and did take the car into Laurens, leaving the passengers in the woods where the wreck occurred. This testimony was given by the conductor with the explanation that he was forbidden to carry passengers on an engine, and that he merely took up the box car on his way to Laurens to get a shanty car and return for his passengers. Under these circumstances the testimony of Nelson as to the conductor’s statements to him, though incompetent, was harmless.

The sixth exception complains of error in the following instruction given in connection with plaintiff’s third request: “I charge you that. Now, that means this, gentlemen of the jury, that where a passenger is on a railroad train and gets hurt, and it is shown that he is hurt on the railroad train, then the presumption is that it was done through the negligence of the railroad company, but when the railroad company shows that it was not through its negligence, but something that it couldn’t help, not held under the law as being negligence, then that presumption of negligence gives way, done away with.” This language must be taken in connection with the request itself, which had explicity limited the presumption of negligence from the fact of injury on a railroad train to injury received from an “agency or instrumentality of the railroad company.” In view of this language of the request it cannot be assumed that the jury were so inattentive as not to understand that when the Circuit Judge in the same connection spoke of a passenger getting hurt on a railroad train, he meant hurt by the railroad’s agency or instrumentality.

The following instruction given at request of plaintiff, taken alone, stated the law against the defendant too broadly: “If an engineer wilfully or intentionally fail or refuse to see a passenger at a flag station, the passenger may recover punitive damages. Also if a conductor promises to hold the train and does not.” Many emergencies may be imagined which would make it the imperative duty of a conductor not to stop for a passenger’s signals at a flag station, or to disregard his promise to hold a train for a passenger, and if the instruction stood alone it would require a reversal. But in other portions of the charge the Circuit Judge gave the instruction with clearness and elaboration that all the conditions and emergencies were to be considered in deciding whether it was the duty of the conductor to take plaintiff up or to stop on his signals. Considering the entire charge on this subject, we do not think the jury could have been misled.