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being bound by this decree, as not having bound the parties to the action by reason of alleged irregularity, appearing on the face of the record. Now, in this case it appears in the record that the service was complete; that is, complete and proper service, such as is recognized by the court as proper service, was made. The only question upon which that service is sought to to be shown to be improper is that the absence from the state of South Carolina of the father does not affirmatively appear on the record. The record is silent on the point whether the father was in the state or not. As a complete service is shown in the absence of the father from the state, and the record being silent upon the point whether he was absent or not, and the other facts stated throughout the record tending to show that the father must have been absent from the state, I think the law will come in and presume that the father was absent from the state, and that the service was complete. It seems to me from these circumstances and the record before me that complete service on these minors is shown, that they were proper parties to the action, that they were represented before the court, that the case was carried through the usual course before the master, who reported upon it, and a decree rendered, and they are barred from recovery in this action; therefore, there is nothing to submit to the jury. The foreman will come forward and write the verdict, 'We find for the defendant the land in dispute.'

The record shows that a copy of the summons was served upon each of the said infants; that they had no general or testamentary guardians, and resided with L. P. Hiller; and that he was the plaintiff in that action. As he was the plaintiff, and the infants resided with him, it was not necessary to serve a copy of the summons on him. Kennedy v. Williams, 59 S. C. 378, 38 S. E. 8. If it appeared from the record that the infants did not have a father or mother, or that neither was in the state, there would have been a complete compliance with the requirements of the section of the Code regulating the mode of service on infants as it stood in 1878, which is identical with section 155, subd. 2, of the present Code of 1902, which is as follows: "If against a minor under the age of fourteen years, to such minor personally, and also to his father, mother or guardian, or if there be none within the state, then to any person having the care and control of such minor, or with whom he shall reside, or in whose service he shall be employed." But in this case the record is silent as to the alleged jurisdictional defect upon which the appellants rely.

In Ex parte Gray, 48 S. C. 566, 569, 26 S. E. 786, the court says: "All presumptions must be indulged in favor of the jurisdiction of a court of general jurisdiction. To avoid such a judgment for want of jurisdiction, the jurisdictional defects must appear affirmatively on the record." The rule is thus stated

in 1 Greenleaf on Ev. § 19. "Conclusive presumptions are also made in favor of judicial proceedings. Thus, the records of a court of justice are presumed to have been correctly made, a party to the record is presumed to have been interested in the suit, and after verdict it will be presumed that those facts, without proof of which the verdict could not have been found, were proved, though they are not expressly and distinctly alleged in the record, provided it contains terms sufficiently general to comprehend them in fair and reasonable intendment." In the case of Clemson College v. Pickens, 42 S. C. 511, 518, 20 S. E. 401, 404, Mr. Chief Justice McIver says: "The practical inquiry is whether the record as set forth in the 'case' shows on its face that the court did not acquire jurisdiction of the person of defendant, and not whether such record is defective in showing that all of the steps necessary to acquire jurisdiction had been taken." The court, in the case of Galpin v. Page, 18 Wall. (U. S.) 350, 21 L. Ed. 959, says: "The presumptions which the law requires in support of the judgment of superior courts of general jurisdiction only arise with respect to jurisdictional facts, concerning which the record is silent. Presumptions are only indulged to supply the absence of evidence respecting the facts presumed." The following language is used in the case of Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742: “Undoubtedly, if the record was silent as to what was done in respect to some material matter, we will presume that what ought to have been done was done. If there is no proof of what was done in obtaining service in the record, we will presume that legal service was in fact made." The foregoing language from the last two cases was quoted with approval in the case of Rice v. Bamberg, 59 S. C. 498, 38 S. E. 209.

The presumption is that those facts existed, without which the court could not have rendered judgment. Therefore the jurisdictional defect relied upon by the appellants, to wit, that it does not appear upon the face of the record that the father was absent from the state, cannot be sustained. When it does not so appear, it cannot be brought in question collaterally, but the party relying upon the defect must have recourse to a direct proceeding. Sanders v. Price, 56 S. C. 1, 33 S. E. 731.

It is the judgment of this court that the judgment of the circuit court be affirmed.

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gers were aboard for that station, and that he said he did not know, and that the train was not stopped at the usual stopping place and passengers were not instructed to get out, it is sufficient to carry the case to the jury on the question of wantonness.

2. SAME-CONDUCT OF TRAIN-STATIONS.

A railroad is bound to stop its train at the usual stopping place and for sufficient time; but, if there were other circumstances requiring extra care, then the carrier was bound to give such extra care to a passenger, and if it failed to do that, and some volunteer attempted to aid the passenger in her efforts to alight, and, while exercising ordinary prudence in so attempting with the aid of such volunteer, the passenger was injured, yet if the negligence of the carrier in failing to stop its train at the proper place, or for a sufficient time, or to render assistance, was the cause of plaintiff's injury, then the carrier would be liable.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 1224, 1228, 1232.] 3. SAME-EVIDENCE-QUESTIONS FOR JURY.

Where a carrier fails to stop its train at the usual stopping place for passengers, it should suppose that a passenger would attempt to alight from the moving train if he could do so prudently; and, when a stranger assists the passenger in so doing and the latter is injured, it is for the jury to determine whether the negligence of the company or that of the assisting person was the proximate cause of the resulting injury.

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POPE, C. J. Elizabeth B. Martin, by her guardian ad litem, Milo B. Martin, brought this action to recover damages of the defendant railway company for personal injuries alleged to have been caused by the negligent, reckless, and wanton conduct of the defendant in failing to stop its train at the usual stopping place at Dawkins, a station in Fairfield county, and put her off. The facts are as follows: On December 2, 1904, plaintiff, a girl of 13 years of age, being in Spartanburg attending school and wishing to go home for the holidays, purchased a ticket for Dawkins, her home, and boarded defendant's train. As the conductor was taking her ticket she requested him to help her off at her destination. He instructed her to keep her seat until the station was called, and promised then to see her off. When the train reached Dawkins it went into a side track to allow the up train to pass. It then came back on the main line, and, according to plaintiff's testimony, stopped some distance above the Here one or two regular stopping place. passengers alighted, and as many got on. Plaintiff, thinking the train would stop at the regular place, kept her seat. Her father, who was at the station to meet her, asked the

conductor if there were any passengers for that place, and on being motioned to the car nearby which the conductor was standing he boarded it. On failing to find his daughter, according to his testimony, he again asked the conductor if there were any passengers for Dawkins, and he responded that he did not know. Soon after the train began to move away, and plaintiff, who was in an extra car behind the one her father had entered, seeing her father and recognizing that the train was not going to stop again, jumped or was pushed off and injured. The defendant denied that it was negligent, and for a defense alleged contributory negligence on the part of the plaintiff. The case was tried at the March, 1906, term of court for Fairfield county, and resulted in a verdict of $1,000 for the plaintiff. Judge J. C. Klugh, the presiding judge, having refused a motion for a new trial, the defendant appealed.

The over

1. The first exception alleges error on the part of the circuit judge in refusing to charge the jury that there was no evidence in the case tending to show wantonness, willfulness, or recklessness on the part of the defendant. Could such a charge have been made? The testimony was uncontradicted that the plaintiff asked the conductor to help her to alight from the train at Dawkins. He admitted himself that he told her to keep her seat until the station was called and he would then help her off as best he could; that he was approached by plaintiff's father and asked as to passengers for Dawkins. whelming weight of the testimony was that the train stopped from 80 to 90 yards from the regular stopping place. From these facts the jury might infer that there was such a disregard of plaintiff's rights as to amount to recklessness; that the conductor's mind adverted to his duty, and he failed to perform it. It is possible that the crowded state of the train might have led him to forget for the time his promise to the plaintiff, a matter as regards which he did not testify, but we are unable to think it at all probable that he could honestly have failed of his duty after being questioned repeatedly concerning it. The question was properly submitted to the jury.

2. The circuit judge charged the jury as follows: "The defendant was bound, not only to stop its train at the usual place, and for sufficient time, but if there were other circumstances which required extra care, even beyond that, on the part of the defendant, then the defendant was bound to give such extra care to the plaintiff, and, if the defendant failed to do that, and some volunteer, attempting not to perform the duties of the de fendant, but attempting to aid the plaintiff in her efforts to alight from the train, and in that way, the plaintiff, while exercising the prudence that the circumstances required of her, and that a person of her situation, of her condition, would ordinarily exercise, was attempting to alight from the train, if you find

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 eircumstances 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 exercise such care, then she could not recover. This was the tenor of the judge's entire charge. That the propositions of law laid down by him are correct is too evident to require citation of authority.

3. The other question is fraught with more difficulty. It is well settled that before recovery 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 perfectly 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 exercise 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.

in a reasonable time after the office is open next day.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones, § 33.]

SITY.

5. TRIAL 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. 590; 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. TELEGRAPHS-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 delivery of message is a sufficient presentation.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Telegraphs and Telephones, § 42.] 2. APPEAL-CONFLICTING EVIDENCE.

Where the evidence was conflicting as to the efforts of a messenger boy to find the addressee of a telegram, a judgment 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 DELIVERY.

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

INSTRUCTIONS - REQUEST-NECES

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 judgment 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

lation to the contrary. The stipulation is, if the person injured fails to make claim under the liability within 60 days, the liability 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 relied 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. 641, 69 S. W. 63; Telegraph Co. v. Trumbull, 27 N. E. 313, 1 Ind. App. 121; Telegraph 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; Shearman and Redfield on Negligence, § 554; Thompson on Elec. § 256.

2. The defendant relied on two additional grounds in the motion for nonsuit: "Because there is no evidence which shows or tends to show any damage, actual or nominal, of which the failure to deliver the telegram in question was the proximate cause, which would entitle the plaintiff to recover under the mental anguish act; * * because the testimony does not show any negligence on the part of the defendant in its efforts to deliver the telegram." The message was received at Camden at 2:47 p. m., and delivered the next day. There was undisputed 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 office; and the operator in the afternoon directed 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 statement, but clearly the evidence made a question 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 soon as she is better." There is nothing in this message to indicate that plaintiff would not have gone to the funeral of his brother, notwithstanding his wife's illness, had he received the message in time; and he testified he would have gone.

4. The defendant next contends the circuit judge erred in not charging the following 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 address, 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 reasonable 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 office 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 under no duty to transmit messages except during such hours, and a message offered for transmission, after the close of such office, at the office of destination, may be transmitted within a reasonable time after the office is open next morning. The failure of the agent to observe the office hours when habitual may be shown in evidence as indicating that no rule on the subject prevails 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 violation of office hours, sending, receiving, or delivering messages out of office hours, occasionally, 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 Bonner 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 introduced, as to the wealth of the company, in granting a nonsuit as to the cause of action based upon winul 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 instructed." Testimony was received as to the wealth of the defendant, which defendant's counsel concedes was competent, before the cause of action resting on the alle

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