Brodie v. Carolina Midland R. R.

The opinion of the court was delivered by Mr. Justice Pope. This action, alleging that while plaintiff, Emma Q. Brodie, was traveling on defendant’s railroad, and by their negligence and carelessness in failing to supply a stool or other means necessary for her to alight [215] from a passenger coach in safety, she was compelled to jump to the ground at an improper and unsafe point on said railroad, whereby she was violently jarred, and such serious injury to her womb was thereby caused, causing serious illness which resulted in her miscarriage, to her damage $2,000, came on to be tried before Judge Ernest Gary and a jury, at the April, 1895, term of the Court of Common Pleas for Aiken County, in this State. A verdict was rendered for the plaintiff. After entry of judgment thereon, the plaintiff appealed to this court. To properly understand the different questions raised in the appeal, we think it will be necessary that the report of the case shall set out the complaint, the requests to charge made by the defendant, the charge of the judge, and the exceptions or ground of appeal. Error is alleged in the failure of the judge below in refusing to grant defendant’s motion for a nonsuit at the close of plaintiff’s testimony. The “Case” discloses the following: The plaintiff rested. Mr. Aldrich (defendant’s attorney) moved for a nonsuit. [215] The Court: “The plaintiff testified that she undertook to step down, and she found that she could not, and she had to jump. Now what were the circumstances surrounding that jump? If she had stood up voluntarily and jumped, that might or might not have been contributory negligence. But starting to get out, and finding that she could not without jumping — was she so far she could not get back? That is a question of fact. Now the only thing! can do is to put it to the jury: if she contributed to the (injury?) she cannot recover, but to say whether her act of jumping was contributory (negligence) or not, would be passing on a question of fact. For that reason I must refuse to grant the nonsuit.” “Exception noted.” The appellant, in his able argument at bar, admits the rule to be, that if there be any evidence in support of the allegations of the complaint, however slight, a nonsuit should not be granted, but he contends, that under the construction of this rule by the court in the case [216] of Poole v. R. R., 23 S. C., 289, where it said: “It may be true that whenever plaintiff alleges in his complaint facts constituting a cause of action and offers testimony sufficient to go to the jury therein in the first instance, yet if he admits the defence relied on, and that defence be one which if true would, as a matter of law, defeat his action, his case becomes a case where there is a total failure of evidence — that is, a total failure of evidence as to his legal right, and subjecting him to a non-suit.” That when the defendant admitted that she jumped from the step, that thereby she established a case of contributory negligence, which was the defendant’s defence to her action, and a nonsuit was proper. We think the language of the court in Pool v. R. R. Co., supra, properly states the rule in such cases, but we are entirely satisfied with the view the Circuit Judge adopted in the case at bar. The mere fact that plaintiff jumped from the lowest step at the rear of the coach in-which she was being transported as a passenger on the defendant railroad, was not all the testimony bearing on this matter. Besides this fact, there were others. The conductor stood on the platform, calling-out, “All off for Whaley’s;” the distance from the lowest step to the ground was from two and a half to three feet; the lad}' had gotten on the lowest step and tried to reach the ground in that way and could not; no stool was placed beside the steps to assist her; no offer from the conductor or any one was made to help her. Under such circumstances, we do not see that the Circuit Judge was to esteem such evidence, introduced as it was by the plaintiff, as establishing contributory negligence to such an extent as to support a nonsuit. This ground of appeal must be overruled. 2 The second and third grounds of appeal will be considered together, and they involve the refusal of the Circuit Judge to charge, in the language of each the fifth and sixth requests to charge presented by the defendant. They are as follows: “When the rights and obligations of one party are made to turn upon the [217] proper caution of another, the standard by which the fact is tested is that of a prudent, reasonable person, in possession of ordinary sense and capacities. When arrangements are made suitable and proper for such persons, nothing more should be required, and one falling below this standard, either physically or mentally, should be cautious and prudent in proportion to such defects.” “Railway companies do not insure the safety of passengers under all circumstances. The liability is conditioned on the exercise of reasonable and proper care and caution on the part of the passengers.” It is true, these requests are formulated upon the express ruling of this court in the case of Renneker v. R. R. Co., 20 S. C., 222, and Simms v. R. R. Co., 27 S. C., 271; but it is nowhere in the law required that the Circuit Judge shall adopt the very language of this court in the promulgation of its views of the law. Indeed, such a course might lead to disaster in the administration of justice, for there is a force and effect given to the charge of a Circuit Judge when he embodies sound principles of law in his own -language, and does not simply repeat the language of another announcing the same principles of law. In the very case at bar, we find the Circuit Judge was exceedingly careful to give to the jury, for their guidance, these principles; for when he was discussing the duty of the defendant railway company to provide means and arrangements requisite for passengers to alight from their trains in safety, and where any injury resulted to a passenger from the neglect of its duty, in this regard, by the railway company, he was careful to say: “That I charge you, provided that by the use of ordinary care the plaintiff could have avoided the injury. That is, such care as a man of ordinary prudence and-caution would have used under the surrounding circumstances'1'' (italics ours). As to the latter request, the Circuit Judge was careful to tell the jury: “The law requires that a passenger on a railroad train should use every reasonable care to avoid injury to himself, and if he fails to tise such care, he cannot recover" [218] (italics ours). Besides all this caution, the Circuit Judge charged the jury, that the duty of ordinary care on the part of the railroad and on the part of the passenger were reciprocal. It is always well to remember, in connection with alleged errors in specific pieces of a judge’s charge, that the charge must be considered as a whole, and that the judge is not required to charge in the precise language of requests to charge. The Circuit Judge ought to see that no request to charge is not responded to by him in one form or the other — that is, either in the language of the request or in his own language. This much counsel have a right to demand; beyond this we cannot go. These grounds of appeal must be dismissed. 3 4 Next we will consider the fourth ground of appeal. The request of defendant was in these words: “When there are two ways of leaving a train, one safe and the other less safe, and a passenger leaving by the latter way and is injured, cannot recover, because, in selecting the more perilous way, he was guiliy of contributory 7iegligence'>'’ (italics ours). If contributory negligence is a question for the jury, we do not see how the Circuit Judge had any business in determining it. Appellant is responsible for the framework of his requests, and if he puts into a request to charge a fault}' proposition, it is no error in the Circuit Judge to refuse to so charge. There was no error here. The fifth ground of appeal ascribes error to the Circuit Judge in refusing to charge its ninth request: “A railway company which provides proper and safe means of egress from its trains, is not liable in damages to one who seeks to leave a train by another way, and is injured by falling into a cattle yard (or in any other way).” What possible reference to the facts in this case, as developed by the pleadings and the testimony, such a request to charge had, the Circuit Judge could not see, nor do we. No injury resulted to plaintiff by falling into a cattle yard; it was from a jarring to the plaintiff resulting from a jump from the [219] steps of a passenger coach to the ground. There was no error here. 5 The sixth ground of appeal alleges error to the Circuit Judge in not embodying in his charge defendant’s tenth request: “Passengers are not entitled to have every precaution to insure safety which is possible to suggest after an accident has occurred.” We do not discover in the charge of the Circuit Judge any failure on his part to confine the attention of the jury to what was really involved in the contest between the parties. There was no suggestion of precautions that might have been taken; the jury were confined to the actual facts before it. This request embodies an abstract question of law in no way connected with the case as made; therefore, it was not error to refuse to so charge. i [219] The seventh ground of appeal relates to the refusal of the Circnit Judge to charge defendant’s eleventh request: “It is not negligence for a conductor to fail to assist a passenger to disembark from a car;” while its eighth ground of appeal relates to the refusal of the Circuit Judge to charge its twelfth request: “The fact that a conductor failed to assist a passenger to disembark from the train, whom he had not been notified needed assistance, is not a fact to be submitted to the jury, in considering the question of negligence.” These requests are bottomed upon some expressions in the opinion of the court in Simms v. R. R. Co., 27 S. C., 270. An examination of that case discloses the fact, that the Circuit Judge charged the jury that it was the duty of the conductor to assist lady passengers off the train, and when this court reached the consideration of that matter its members were unanimous that no such charge should have'been made. Here is the language: “Now, it seems to us, that his honor here went beyond the rule when he charged the jury, as matter of law, that it was the duty of the conductor to assist passengers off. He ought to have left this to the jury. It was their province to say whether failing to assist the plaintiff, under [220] the circumstances surrounding her and him, the conductor failed to bestow that care which the matter reasonably demanded at his hands.” The language we have quoted plainly manifests that, under the view of this court, it was not the duty of the court to charge, as matter of law, that it was the duty of the conductor to assist passengers off the train, but, on the contrary, it was entirely within the province of the jury, in considering whether a railroad has observed due care of its passengers, the conduct of the conductor, its agent, as to any aid by him to passengers disembarking, may be canvassed by the jury in reaching a conclusion. The Circuit Judge, under this rule, ought not to have indicated what he thought, as he might have done if he had adopted the language of either of those requests. These grounds of appeal must be dismissed. The ninth ground, involving a refusal to charge the thirteenth request of defendaut, must be overruled; for, if the Circuit Judge had so charged, it would have been an expression of opinion by him upon a partial view of the facts in testimony. It is the' judgment of this court, that the judgment of the Circuit Court be affirmed.