Richardson v. Augusta & Aiken Ry. Co.

April 8, 1908. The opinion of the Court was delivered by The plaintiffs, W.S. Richardson and Mrs. M.A. Richardson, are husband and wife, and the former is made a formal party. Mrs. Richardson insists in her complaint that she was injured while making an effort to board the train of the defendant and sues for ten thousand dollar damages for such alleged injuries. The defendant denies that she was injured, as alleged by her, but says that if she was so injured it was on account of her contributory negligence. The action came on to be heard before Judge Hydrick and a jury; both sides introduced testimony, and after the Judge's charge the jury rendered a verdict of eight hundred dollars in favor of the plaintiffs. The defendant now appeals to this Court on one ground, and in that ground it alleges that the presiding Judge was in error in refusing to charge defendant's sixth request to charge, which was as follows: VI. "The jury is further charged that it is not the duty of a conductor on a car to assist a passenger on and off the said car, unless said passenger is feeble or encumbered with heavy baggage or other impediments, and thus needs assistance. So, in this case, I charge you that unless the plaintiff, at the time alleged in the complaint, was in a feeble condition, *Page 537 or so encumbered with baggage or other impediments that she needed help to get on the car, and unless these facts were brought to the knowledge or attention of the conductor, it would not be negligence on his part to fail to assist her on the car." The Circuit Judge, in his refusal to charge as requested, said: "I can not charge you that, gentlemen. This is a proposition of law in which the Supreme Court of this State stated, in another case, that where the conductor of a railroad train saw a lady undertake to board a car encumbered with heavy baggage, and heard her ask her husband to assist her into the car with the baggage, that it was the duty of the railroad to assist the lady in the car, or else give the husband ample time to help her in and get out. But I can not tell you, as a matter of law, that unless the conductor saw that she was encumbered with baggage, and all that kind of thing, that it was not his duty. I leave it to you as a question of fact, under all the testimony in the case, to say whether or not, under all the circumstances as they appeared to the conductor at the time, or as they should have appeared to a person in the exercise of that degree of care which the law requires him to exercise, he should have assisted the plaintiff upon the car. I leave that to you as a question of fact to be determined under all the testimony in the case, and if you say, as a matter of fact, that he should have assisted her upon the car, then it does not necessarily follow that his failure to do so was the cause of the injury. You might go further, because, as you will remember, I told you it is only negligence which is the proximate cause of a legal injury that will sustain an action at law." We do not know that we can better express the duty of a conductor to a passenger than by citing the language of Chief Justice Simpson, in the case of Simms v. RailwayCompany, 27 S.C. 268, 269, 3 S.E., 301: "Negligence. as we understand it, is in the main a question of fact, or rather whether it exists or not in a special case is a question *Page 538 of fact for the jury. All that the law has ever determined on the subject is that it consists in failing to bestow due care to the matter in hand; failing to do that which due care requires to be done, or doing that which said care forbids." From the testimony here the following quotation is made: "Q. Is it a rule of the company that conductors are required to assist ladies on the car? A. Yes. And you did not do it in this case? A. Oh, no — Q. Answer my question? A. I did not do it that time." The appellants in this case practically adopt the language of the Court in the case of Johnson v. Railway Company,53 S.C. 206, 31 S.E., 222. Reference to that case shows that the charge under consideration there had reference to the duty of a conductor to a female passenger, feeble and encumbered with heavy baggage. It cannot be contended that the plaintiff in the case at bar was proved to have been either feeble or encumbered with heavy baggage. No excuse could have been had for the Circuit Judge in the case at bar adopting the language of this request, but the language employed by the Circuit Judge shows that he laid down the law carefully as to the duty of a conductor to a passenger. He had in view, no doubt, the case of Madden v. Railway Company, 35 S.C. 384,14 S.E., 825, as well as the other cases just cited. A Circuit Judge is not required to include in his charge either abstract quotations of law or questions that can have no reference to the duty of the jury in the case under consideration. There was no error here, and the exception is overruled. The judgment of the Circuit Court is affirmed.