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that some person, whether it was a stranger or passenger, or who, was attempting to aid her in her own efforts to do what, under the circumstances of the situation, she thought was proper and prudent for her to do, then, although that conduct on the part of the stranger along with the conduct of the plaintiff herself may have led to her getting off the train and suffering injury, yet if the negligence of the defendant brought about that state of things, and if the negligence of the defendant in failing to stop its train at the proper place, or for a sufficient time, and in failing to render any extra assistance, if it was required by the circumstances of the case. If that was still the direct and proximate cause of the plaintiff's injury, then the defendant would still be liable, notwithstanding the fact that some other person may have also intervened and aided the plaintiff in her efforts to get off of the train.” Defendant objected to this charge, on the ground that it in effect instructed the jury that the act of a third person in putting plaintiff off of the train could not be the proximate cause of her injuries if defendant failed to stop its train at the usual place, and for a sufficient time, or did not render the assistance required, and that by such charge his honor made the standard of plaintiff's negligence, or contributory negligence, to depend entirely upon “what under the circumstances of the situation she thought was proper and prudent for her to do," instead of the standard preScribed by law. Reference to the charge will clearly show that the last objection cannot be sustained. The circuit judge was very thorough in his charge as to contributory negligence. He charged that the law requires of every person ordinary care, the care that a person of ordinary prudence under the cirCumstances would exercise; that the law does not hold a person of immature years to the same rule of measurement that it does a mature person; that if a child is a mere infant that it is not capable of negligence, but if it is advanced in years and developed in intelligence to such an extent that it is capable of exercising some degree of care, then the law requires of such child the exercise of such a degree of care as a child of ordinary intelligence, ordinary development of a similar age, would naturally or usually exercise; that in this case, if the jury find that the plaintiff was a child of immature years, and that for a child of that degree of development she exercised the ordinary care that a child of such age would exercise, then the negligence could not be imputed to her under the circumstances; that if she did not exertise such care, then she could not recover. This was the tenor of the judge's entire “large. That the propositions of law laid down by him are correct is too evident to requite citation of authority. 3. The other question is fraught with more "ticulty. It is well settled that before re*ry can be had for negligence it must be

shown that the injury was the proximate result of that negligence. If there be an intervening cause, and the prior cause do nothing more than give rise to the circumstances under which the injury occurs, then such prior cause cannot be said to be the proximate cause. There may be, however, a succession of causes, and the first be the proximate cause. Cooper v. Richland Co., 76 S. C. 202, 56 S. E. 958; Mayrant v. City of Columbia, 57 S. E. 857. The above charge sought to convey to the jury that if a third person aided the plaintiff in doing what under the circumstances she would have done without such aid, then his act could not be the proximate cause of her injury. It was perfectsy natural for the defendant to suppose that if it failed to stop its train at the usual place at Dawkins that plaintiff, if she thought she could prudently do so, would endeavor to get off. If she were injured in getting off, provided she exercised ordinary care, then the failure to stop would be the proximate cause of her injury. Now, if a third person helps her to do what she intended doing on account of the negligence of the defendant, it seems perfectly clear that the act of such third person was not necessarily the proximate cause, but merely an aid in carrying out the result which would inevitably have followed from her own independent act. The distinction between this case and the cases cited by the appellant is that there is evidence from which the jury might infer the plaintiff was about to alight without respect to the interference of the third person, while in those cases the result took place merely from a condition brought about by the third persons, without whom it would not have happened. Take, for instance, the case of Snyder v. Railway (Colo. Sup,) 85 Pac. 686, where the conductor on a crowded train pushed a passenger against another, who pushed him off of the train. There no injury would have resulted had it not been for the act of the passenger. If the plaintiff had no intention of alighting from the train, but was pushed off by a third party, there would be room to assign the act of such third party, and not the negligence of the defendant, as the proximate cause. But, inasmuch as in this case there is evidence from which the jury might infer the defendant was negligent, and that the plaintiff could have undertaken to alight from the moving train in the exer. cise of ordinary prudence, and would have done so of her own volition, the fact that an outsider aided and accelerated her act of alighting would not be sufficient to take from the jury the consideration of what was the proximate cause. In this view of the case we think the circuit judge was correct, and properly submitted it to the jury to say whether the defendant's act was the proximate cause of the injury. The consideration of these questions disposes of the motion for a new trial which was made upon the grounds: (1) That there was no evidence of wantonness or recklessness; (2) that the injuries were caused by the act of a third person. There being evidence on both of these issues, this court cannot interfere. Miller v. Railway, 69 S. C. 116, 48 S. E. 99; Wilson v. Assurance Co., 51 S. C. 549, 29 S. E. 245, 64 Am. St. Rep. 700. 4. The fifth exception alleges error on the part of the circuit court in charging that it is prima facie negligence on the part of a carrier to fail to stop its cars at the usual stopping place. It is the duty of railroads to stop their trains at their stations. Civ. Code 1902, § 2134; Cooper v. Railway, 61 S. C. 345, 39 S. E. 543. It has been held in a number of cases that failure to give the signals at crossings as required by statute is negligence per se. Bowen v. Railway, 58 S. C. 223, 36 S. E. 500; Smith v. Railway, 53 S. C. 121, 30 S. E. 697. We are unable to see that this statute is more mandatory than the one now under consideration, or that one duty is superior to the other. Hence the only logical and consistent view is that it is negligence per se for defendant to fail to stop its rain at its station. What is stopping at a station is a question which must be left to the jury. Cooper v. Railway, supra. Likewise what would constitute the usual stopping place must be a question for that body. It may include a greater or a less distance, according to the circumstances. The stopping place is the station, and if the jury find that the carrier did not stop at the station then prima facie it is negligent. This contention is overruled. It is the judgment of this court that the judgment of the circuit court be affirmed.

--

SMITH v. WESTERN UNION TELEGRAPH CO.

(Supreme Court of South Carolina. July 13, 1907.)

1. Telegr:APHS-DELAY IN DELIVERY-NoTICE OF CLAIM. Where a telegraph blank stipulates that a laim shall be presented in writing within 60 ays, suit within that time for negligence in delivery of message is a sufficient presentation. [Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Telegraphs and Telephones, § 42.]

2. APPEAL–Co NFLICTING EVIDENCE. Where the evidence was conflicting as to the efforts of a messenger boy to find the addressee of a telegram, a judginent finding negligence will not be disturbed. [Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $$ 3935–3937.]

3. TELEGRAPHs—DELAY IN DELI very. Where a telegram, delayed in delivery, announced a death, and requested an answer as to whether addressee could come, he has a cause of action, there being nothing to show that he could not have gone to the funeral. [Ed. Note.—For cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones, § 33.]

4. SAME.

A telegraph company is not liable for delay in delivering telegram received after closing hours, if the office hours are reasonable, and the message so received may be transmitted with

#. a reasonable time after the office is open next

ay. [Ed. Note.—For cases in point, see Cent. Dig.

vol. 45, Telegraphs and Telephones, § 33.)

5. TriAL – INSTRUCTIONs — REQUEST-NECESSITY.

Where, in an action against a telegraph company for negligence and wantonness in the transmission of the telegram, evidence is received as to the wealth of the company, it is not reversible error, where a nonsuit is granted as to the cause of action for wantonness, to fail to instruct not to consider such evidence on the cause of action for negligence, in the absence of a request therefor.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, § 628.]

Appeal from Common Pleas Circuit Court of Kershaw County; Hydrick, Judge.

Action by C. L. Smith against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Geo. H. Fearons and Nelson & Nelson, for appellant. Clark & Von Fresckow, for respondent.

WOODS, J. The plaintiff recovered judg: ment for mental anguish, alleged to have been produced by the negligent delay of the defendant in delivering the following telegram, sent by plaintiff's father, concerning the death and burial of his brother: “Apex, S. C., Oct. 4. C. L. Smith, Camden, S. C. Anderson dead; be buried here tomorrow; answer if you can. Rufus Smith.” The 1sSue of punitive damages was eliminated by an order of nonsuit, from which the plaintiff has not appealed. 1. The main contention of the defendant is that a nonsuit should have been ordered, as to the whole case, on several grounds submitted to the circuit judge. The first was the failure of the plaintiff to show that any claim for damages was presented in writing within 60 days after the filing of the message. This point might be dismissed with the remark that the stipulation relied on does not appear on the telegram as printed in the record. But as the remarks of the circuit judge, in considering the motion, show that it was before the court, we will not refuse to pass on it. The suit was brought within 60 days after the alleged breach of duty and consequent damage to the plaintiff, and the question is whether this was a sufficient compliance with the requirement that the claim should be presented within 60 days. While the requirement that the claim for damages shall be presented within 60 days has been held valid, because essential to the proper investigation of claims, nothing should be added to the meaning of the language which the company has itself employed in imposing the condition. The general rule is that the liability attaches by operation of law as soon as damage to the plaintiff results from the negligence of the

defendant, and there is nothing in the stipu

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jor lation to the contrary. The stipulation is,
* if the person injured fails to make claim
*: Inder the liabllity within 60 days, the lia-
o bility which had been incurred comes to an
* end and the cause of action is gone. But
to the suit is a presentation of the claim in
so writing, and under the stipulation preserves
of the liability. The defendant's counsel re-
* lied on the case of Western Union Telegraph
Company v. Yopst (Ind.) 11 N. E. 16, in which
* † to the court takes his view ; but the weight

also of authority supports the conclusion we have
reached. Phillips v. Telegraph Co., 95 Tex.
$41, 69 S. W. 63; Telegraph Co. v. Trum-
bull, 27 N. E. 313, 1 Ind. App. 121; Tele-
graph Co. v. Mellon, 33 S. W. 725, 96 Tenn.
66; Telegraph Co. v. Henderson, 18 Am. St.
Rep. 148, 89 Ala. 510, 7 South. 419; Bryan
7. Telegraph Co., 45 S. E. 938, 133 N. C, 603;
Shearman and Redfield on Negligence, $ 554;
Thompson on Elec. § 256.
2. The defendant relied on two additional
grounds in the motion for nonsuit: “Be-
Cause there is no evidence which shows or
tends to show any damage, actuai or nomin-
al, of which the failure to deliver the tele-
gram in question was the proximate cause,
which would entitle the plaintiff to recover
Under the mental anguish act; * * * be-
Cause the testimony does not show any neg-
"As of ligence on the part of the defendant in its
st efforts to deliver the telegram.” The mes-
Sge was received at Camden at 2:47 p. m.,
and delivered the next day. There was un-
disputed evidence of great diligence on the
part of the operator to locate the plaintiff
and deliver the telegram. The negligence,
if any, was on the part of the messenger
boy. The plaintiff was living with Mrs.
Joyner, two blocks from the telegraph of-
fire; and the operator in the afternoon di-
rected the messenger to try to find plaintiff
there. He failed to go to the Joyner house,
Saying he could not find it, but the witness
d McCain testified that he told him where it
d Was. The messenger denied McCain's state-
ment, but clearly the evidence made a ques-
tion of fact for the jury as to his negligence.
The position that there was no evidence of
actual damage to the plaintiff was equally
Intenable.
3. When plaintiff received the belated
telegram, he replied: “Message received too
late; wife sick; will come to see you as
800m as she is better.” There is nothing in
this message to indicate that plaintiff would
not have gone to the funeral of his brother,
Hotwithstanding his wife's illness,
received the message in time; and he tes-
tified he would have gone,
4. The defendant next contends the cir-
ruit judge erred in not charging the follow-
ing request, without modification: “If the
jury find the defendant used due diligence
and could not locate the plaintiff, C. L.
Smith, and asked the sender for some ad-
dies, and such address was not received

until after closing hour, then the company
was under no duty to deliver the message
until within a reasonable time after the
opening hour the next day, provided such
opening and closing hours were reasonable.
And if the company should, under such state
of facts, deliver the message within a rea-
sonable time after the opening hour next
morning, then the jury should find for the
defendant.” After reading the request to
the jury, the circuit judge said: “Now, with
regard to that request, I charge you this,
that the telegraph company has the right
to establish reasonable rules for the conduct
of its business, has the right to establish
reasonable office hours, and, if the office
hours established as shown by the testimony
are reasonable, then the company is not
bound to either deliver, send, or receive a
message after office hours, unless, by a
course of dealing, by a custom, it has so
conducted itself as to have waived the of.-
fice hours which it established. That is a
question of fact for the jury. I will read
it to you. If the office hours established for
an office are reasonable, the company is un-
der no duty to transmit messages except
during such hours, and a message offered
for transmission, after the close of such of.
fice, at the office of destination, may be
transmitted within a reasonable time after
the office is open next morning. The fail-
ure of the agent to observe the office hours
when habitual may be shown in evidence
as indicating that no rule on the subject pre-
vails or was enforced; but proof merely of
the occasional transmission or delivery will
not be sufficient to establish waiver of the
regulation. You see, an occasional viola-
tion of office hours, sending, receiving, or de-
livering messages out of office hours, occa-
sionally, would not be sufficient proof to
show waiver of office hours; but it must
be habitual, and it is for the jury to say
whether or not it is so habitual as to amount
to waiver of office hours.” The charge was
in accord with the opinion expressed in Bon-
ner v. Telegraph Co., 71 S. C. 303, 51 S. E.
117, and Harrison v. Telegraph Co., 71 S.

ent. In

st Coor

* Wo.
iglo
§ 1.

*On, I
st to

iji;
} has
Of to
g to

or its

Too!
he so
od of
into

had he

C. 386, 51. S. E. 119.
5. The defendant charges the circuit judge
erred “in not instructing the jury that they
were not to consider the testimony introduc-
ed, as to the wealth of the company, in
granting a nonsuit as to the cause of action
based upon will, ul tort, the error being that
it tended to mislead the jury and to lead
them to believe that they could, on account
of the wealth of the company, increase their
verdict for mere negligence; whereas, such

testimony could only apply to the cause of
action based on willfulness and wantonness,
and the jury should not have been so in-
structed.” Testimony was received as to
the wealth of the defendant, which defend-
ant's counsel concedes was competent, be-
fore the cause of action resting on the alle.
no evidence of Wantonness or recklessness;
(2) that the injuries were caused by the act
of a third person. There being evidence on
both of these issues, this court cannot inter-
fere. Miller v. Railway, 69 S. C. 116, 48 S.
E. 99; Wilson v. Assurance Co., 51 S. C. 549,
29 S. E. 245, 64 Am. St. Rep. 700.
4. The fifth exception alleges error on the

[graphic]

1. TFLEGRAPHS-DELAY IN DELIVERY-NoTICE

OF CLAIM.

Where a telegraph blank stipulates that a

claim shall be presented in writing within 60
days, suit within that time for negligence in de-
livery of message is a sufficient presentation.
| Ed. Note.—For cases in point, see Cent. Dig.

vol. 39, Telegraphs and Telephones, § 42.]

2. APPEAL–CoN FLICTING EVIDENCE.

Where the evidence was conflicting as to

the efforts of a messenger boy to find the ad-
dressee of a telegram, a judginent finding neg-
ligence will not be disturbed.
[Ed. Note.—For cases in point, see Cent. Dig.

vol. 3, Appeal and Error, $$ 3935–3937.]

3. TELEGRAPHs—DELAY IN DELIVERY.

Where a telegram, delayed in delivery, an-

nounced a death, and requested an answer as
to whether addressee could come, he has a cause
of action, there being nothing to show that he
could not have gone to the funeral.
[Ed. Note.—For cases in point, see Cent. Dig.

vol. 45, Telegraphs and Telephones, § 33.]

#. a reasonable time after the office is open next
ay.

[Ed. Note.—For cases in point, see Cent. Dig.
vol. 45, Telegraphs and Telephones, § 33.]
5. TriAL – INSTRUCTIONs — REQUEST-NECEs-

SITY.

Where, in an action against a telegraph

company for negligence and wantonness in the
transmission of the telegram, evidence is receiv-

ed as to the wealth of the company, it is not

reversible error, where a nonsuit is granted as
to the cause of action for wantonness, to fail

to instruct not to consider such evidence on the

cause of action for negligence, in the absence

of a request therefor.

WOODS, J. The plaintiff recovered judg-

ment for mental anguish, alleged to have

been produced by the negligent delay of the
defendant in delivering the following tele-
gram, sent by plaintiff's father, concerning
the death and burial of his brother: “Apex,
S. C., Oct. 4. C. L. Smith, Camden, S. C.
Anderson dead; be buried here tomorrow;
answer if you can. Rufus Smith.” The is-
sue of punitive damages was eliminated by
an order of nonsuit, from which the plaintiff
has not appealed.

1. The main contention of the defendant

is that a nonsuit should have been ordered,

as to the whole case, on several grounds sub-

mitted to the circuit judge. The first was

the failure of the plaintiff to show that any
claim for damages was presented in writ-

ing within 60 days after the filing of the

message. This point might be dismissed

with the remark that the stipulation relied

on does not appear on the telegram as print-
ed in the record. But as the remarks of the
circuit judge, in considering the motion, show

that it was before the court, we will not re-

fuse to pass on it. The suit was brought

within 60 days after the alleged breach of

duty and consequent damage to the plaintiff,
and the question is whether this was a suffi-
cient compliance with the requirement that

the claim should be presented within 60

days. While the requirement that the claim

for damages shall be presented within 60

days has been held valid, because essential
to the proper investigation of claims, noth-
ing should be added to the meaning of the
language which the company has itself em-

ployed in imposing the condition. The gen-

eral rule is that the liability attaches by

operation of law as soon as damage to the

plaintifr results from the negligence of the

defendant, and there is nothing in the stipu-

[ocr errors][graphic]

lation to the contrary. The stipulation is,

if the person injured falls to make claim

under the liability within 60 days, the lia-

bility which had been incurred comes to an

end and the cause of action is gone. But

the suit is a presentation of the claim in

writing, and under the stipulation preserves

the liability. The defendant's counsel re-

lied on the case of Western Union Telegraph

Company v. Yopst (Ind.) 11 N. E. 16, in which

the court takes his view; but the weight

of authority supports the conclusion we have

reached. Phillips v. Telegraph Co., 95 Tex.

$41, 69 S. W. 63; Telegraph Co. v. Trum-

bull, 27 N. E. 313, 1 Ind. App. 121; Tele-

graph Co. v. Mellon, 33 S. W. 725, 96 Tenn.

66; Telegraph Co. v. Henderson, 18 Am, St.

Rep. 148, 89 Ala. 510, 7 South. 419; Bryan

v. Telegraph Co., 45 S. E. 938, 133 N. C. 603;

Shearlman and Redfield on Negligence, $ 554;

Thompson on Elec. § 256.

2. The defendant relied on two additional

grounds in the motion for nonsuit: “Be-

Cause there is no evidence which shows or

tends to show any damage, actuai or nomin-

al, of which the failure to deliver the tele-

gram in question was the proximate cause,

which would entitle the plaintiff to recover

under the mental anguish act; * * * be-

Cause the testimony does not show any neg-

ligence on the part of the defendant in its

efforts to deliver the telegram.” The mes-

Sage was received at Camden at 2:47 p. m.,

and delivered the next day. There was un-

disputed evidence of great diligence on the

part of the operator to locate the plaintiff

and deliver the telegram. The negligence,

if any, was on the part of the messenger

boy. The plaintiff was living with Mrs.

Joyner, two blocks from the telegraph of.

fire; and the operator in the afternoon di-

rected the messenger to try to find plaintiff

there. He failed to go to the Joyner house,

saying he could not find it, but the witness

McCain testified that he told him where it

Was. The messenger denied McCain's state-

Ident, but clearly the evidence made a ques-

tion of fact for the jury as to his negligence.

The position that there was no evidence of

actual damage to the plaintiff was equally

untenable.

3. When plaintiff received the belated

telegram, he replied: “Message received too

late; wife sick; will come to see you as

800m as she is better.” There is nothing in

this message to indicate that plaintiff would

m0t have gone to the funeral of his brother,

received the message in time; and he tes-

tified he would have gone.

4. The defendant next contends the cir-

cuit judge erred in not charging the follow-
ing request, without modification: “If the
jury find the defendant used due diligence
and could not locate the plaintiff, C. L.
Smith, and asked the sender for some ad-
dress, and such address was not received

until after closing hour, then the company

was under no duty to deliver the message

until within a reasonable time after the

opening hour the next day, provided such

opening and closing hours were reasonable.

And if the company should, under such state

of facts, deliver the message within a rea-

sonable time after the opening hour next

morning, then the jury should find for the

defendant.” After reading the request to

the jury, the circuit judge said: “Now, with

regard to that request, I charge you this,

that the telegraph company has the right

to establish reasonable rules for the conduct

of its business, has the right to establish

reasonable office hours, and, if the office

hours established as shown by the testimony

are reasonable, then the company is not

bound to either deliver, send, or receive a

message after office hours, unless, by a

course of dealing, by a custom, it has so

conducted itself as to have waived the of.

fice hours which it established. That is a

question of fact for to:c jury. I will read

it to you. If the office hours established for

an office are reasonable, the company is un-

der no duty to transmit messages except

during such hours, and a message offered

for transmission, after the close of such of.

fice, at the office of destination, may be

transmitted within a reasonable time after

the office is open next morning. The fail-

ure of the agent to observe the office hours

when habitual IIIay be shown in evidence

as indicating that no rule on the subject pre-

vails or was enforced; but proof merely of

the occasional transmission or delivery will

not be suslicient to establish waiver of the

regulation. You see, an occasional viola-

tion of office hours, sending, receiving, or de-

livering messages out of ollice hours, occa-

sionally, would not be sufficient proof to

show waiver of office hours; but it must

be habitual, and it is for the jury to say

whether or not it is so habitual as to amount

to waiver of office hours.” The charge was

in accord with the opinion expressed in Bon-

ner v. Telegraph Co., 71 S. C. 303, 51 S. E.

117, and Harrison v. Telegraph Co., 71 S.

C. 386, 51. S. E. 119.

5. The defendant charges the circuit judge

erred “in not instructing the jury that they

were not to consider the testimony introduc-

ed, as to the wealth of the company, in

granting a nonsuit as to the cause of action

based upon will, ul tort, the error being that

it tended to mislead the jury and to lead

them to believe that they could, on account

of the wealth of the company, increase their

verdict for mere negligence; whereas, such

testimony could only apply to the cause of

action based on willfulness and wantonness,
and the jury should not have been so in-
structed.” Testimony was received as to
the wealth of the defendant, which defend-
ant's counsel concedes was competent, be.
fore the cause of action resting on the alle.

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