October 9, 1914. The opinion of the Court was delivered by On the 24th day of August, 1912, the plaintiff purchased a ticket from the defendant, at Florence, S.C. for the purpose of being carried as a passenger to Laurens, S.C. In making the trip, it was necessary for him to change cars at Sumter, S.C. about 4 o'clock in the morning. There is evidence that when the conductor came to the plaintiff to collect his fare he told the conductor that he was very tired, and probably would not be awake when the train arrived at Sumter, and thereupon requested the conductor to see that he was awake, in order that he might make the necessary change of cars. The conductor promised to comply with his request. When the train arrived at Sumter, the plaintiff had fallen asleep, but the conductor failed to awake him, and he was carried several miles beyond said station. *Page 428
At the close of the testimony, the defendant's attorney made a motion for the direction of a verdict, on the ground that no duty was imposed by law upon the defendant to see that the plaintiff was awake when the train arrived at Sumter.
The motion was granted and the plaintiff appealed.
The question to be determined is, whether there was error on the part of his Honor, the presiding Judge, in directing a verdict on the ground just stated.
The question is not whether it is the duty, ordinarily, of a conductor to awake a sleeping passenger, but whether it is his duty to render assistance to a passenger, in order that he may alight from the train at the proper time, when his physical condition renders such assistance necessary, and the conductor has knowledge of such fact. Under such circumstances, a promise on the part of the conductor is merely incidental to his duty to render assistance to passengers, in getting off the train when he has notice of the fact, that his aid is needed.
This is not a case in which the passenger was attempting to convert an ordinary coach into a sleeping apartment, but where he was afraid he would be overcome by sleep, involuntarily, on account of his physical condition, and, therefore, sought the assistance of the conductor in order that he might be in a condition to make the necessary change of cars.
The rule is well settled that if there are circumstances which require the assistance of the conductor to a passenger in alighting from a train, the railroad company is liable if the conductor has notice of such circumstances and fails to render the necessary assistance. Madden v. Ry., 41 S.C. 440,19 S.E. 951, 20 S.E. 65; Doolittle v. Ry., 62 S.C. 130,40 S.E. 133.
In the present case, the conductor not only was notified that the plaintiff would probably need his assistance, but he promised to comply with the plaintiff's request. *Page 429
It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and the case remanded to that Court for a new trial.
MESSRS. JUSTICE HYDRICK and FRASER concur in the opinion of the Court.