January 3, 1928. The opinion of the Court was delivered by The plaintiff alleged, among other things, that on the morning of August 9, 1924, she became a paid passenger on one of defendant's passenger trains from Rock Hill to Ft. Mill, South Carolina; that the conductor and other agents of the defendant saw or should have seen that she was an old woman, very stout and feeble; that at Ft. Mill she left her seat to alight from the train; that while she was attempting to go down the steps of the coach, the train suddenly started without warning, she was thrown down, her hip bone was broken, and she was rendered a helpless invalid for life. She alleged that her injuries were caused by the negligence of the defendant in the following particulars:
"(a) In failing to furnish plaintiff, an old, feeble woman, assistance in alighting from its train. (b) In failing to furnish plaintiff, an old, feeble woman, adequate and safe means of descending from its train. (c) In failing to stop its train a sufficient period of time for the plaintiff to safely get off. (d) In starting its train. (e) In starting its train suddenly and without warning to plaintiff while she, an old woman, was in the act of descending therefrom."
The defendant admitted by its answer that the plaintiff received some injuries at the time and place mentioned in *Page 520 the complaint, while alighting or just after she had alighted from the defendant's train, but alleged that such injuries were due solely to her own negligence. It also set up the plea of contributory negligence, and pleaded as a bar to the action a release alleged to have been executed by the plaintiff in consideration of $150 paid her by the defendant.
The plaintiff, replying, denied the execution of the release; alleged that the amount named therein was totally inadequate to compensate her for her injuries; and alleged further that the said release was null and void by reason of the fact that at the time it was alleged to have been procured, the day after she was injured, she was lying in the hospital suffering great agony and pain from her broken hip, or was under the influence of drugs and no match for the defendant's agents, and was not conscious of her rights and did not know the extent of her injuries, which was known to the defendant, and that her signature to the said alleged release was procured by fraud, unfair methods, and misrepresentation on the part of the defendant.
The case was tried in November, 1925, in Chester county. At the close of all the testimony, defendant made a motion for a directed verdict which was overruled by the presiding Judge; the jury found for the plaintiff in the sum of $2,500.
The defendant's exceptions are six in number. The first three impute error to the trial Judge in refusing to direct a verdict for the defendant upon the grounds stated in its motion: (1) That no other reasonable inference could be drawn from the testimony than that the plaintiff, for valuable consideration, executed a release in favor of the defendant, for the personal injuries alleged to have been received by her, and that there is no evidence of fraud or misrepresentation on the part of the defendant in the procuring of the said release; and (2) that there was no evidence tending to show negligence or a breach of duty on the part of the defendant, independently of the said release, as the proximate cause of the plaintiff's injuries. *Page 521
As there must be a new trial we shall not go at length into the testimony adduced in the case. It is enough to say that an examination of the testimony reveals that the trial Judge properly submitted to the jury the question of the validity of the release as well as the question of the defendant's negligence as the proximate cause of the plaintiff's injuries. There was testimony tending to show that the day after the accident occurred, the plaintiff, an old negro woman, while in the hospital, and while under the influence of drugs or suffering from the shock of the severe pain that naturally resulted from her injuries, signed a release, in consideration of $150 paid her by the defendant, releasing and discharging the defendant from all liability, etc., that might arise from her said injuries. Under all the circumstances, it was a question for the jury to say whether she freely and voluntarily executed the release, or whether, not knowing or understanding what she was doing, she was induced to sign it by misrepresentation, fraud or coercion.
As to the second ground there was testimony tending to show that while the plaintiff was attempting to get down from the steps of the coach, there was a sudden jerk of the train which threw her to the ground resulting in painful injuries. The defendant, as a common carrier of passengers, owed to the plaintiff, as a passenger on its train, the highest degree of care; and whether or not it was guilty of negligence in the exercise of its duty in that respect was, under all the testimony, a question for the jury.
By its fifth exception the defendant imputes error to the trial Judge in charging the jury that one who sets up the defense of contributory negligence admits negligence on his part. While, as stated by the Court in Cooper v. Railway Co., 56 S.C. 91; 34 S.E., 16, "contributory negligence by a plaintiff can never exist except when the injury has resulted from the negligence of defendant as a concurring proximate cause," it does not follow that by the plea of contributory negligence the defendant *Page 522 admits negligence on his part. However, while the trial Judge charged the jury as complained of, when the error was called to his attention by Mr. Hamilton, one of the attorneys for the plaintiff, he corrected same by proper instructions on that point. The error complained of was thus rendered harmless.
The sixth exception presents a more serious question. In charging the jury on contributory negligence, the trial Judge told them that if they should reach the conclusion that the defendant company was negligent, they should then inquire as to whether the plaintiff herself was negligent, and added: "If so, was the plaintiff's negligence greater or more efficient or nearer or was a more efficient cause of the injury than the negligence of the defendant? If so, then the plaintiff could not recover * * * because the plaintiff would be guilty of contributory negligence."
It is true that the trial Judge in his charge gave a correct definition of contributory negligence, but later he charged the jury as indicated above. We think that, in spite of the correct definition at first given by the Court, this later charge on the question would lead the jury to conclude that, although the plaintiff might be guilty of negligence to some extent, combining and concurring with the negligence of the defendant as the proximate cause of the injury, still, if such negligence, upon comparison with the negligence of the defendant, did not exceed in quantity, or was not a greater or more efficient cause of the injury than the defendant's negligence, it would not amount to contributory negligence barring recovery on the part of the plaintiff.
A good definition of contributory negligence, cited with approval in a number of our cases, is found in 7 Eng. Am. Ency. of Law (2d Ed.) p. 371:
"Contributory negligence is a want of ordinary care upon the part of a person injured by the actionable negligence of *Page 523 another, combining and concurring with that negligence, and contributing to the injury as a proximate cause thereof, without which the injury would not have occurred."
The meaning of the word "contributory," as stated inEasler v. Railway Co., 59 S.C. 311; 37 S.E., 938, "necessarily implies that there is some other negligence to which it contributes in bringing about the injury complained of — both being a proximate cause and the two combined and concurring together constitute the proximate cause of the injury."
It is a well established rule that "contributory negligence to any extent will always defeat a recovery." See Gunter v. Manufacturing Company, 15 S.C. 443;Thackston v. Railway Co., 40 S.C. 80; 18 S.E., 177.Easler v. Railway Co., supra; Cooper v. Railway Co., supra.
From the foregoing it is clear that his Honor's charge was erroneous. Whatever may be said in favor of its wisdom and justice, the doctrine of comparative negligence does not prevail in this State. The defendant's sixth exception is sustained.
We do not deem it necessary to consider the fourth exception. The judgment of the Circuit Court is reversed and the case remanded for a new trial.
MR. CHIEF JUSTICE WATTS and MR. JUSTICE COTHRAN concur. MR. JUSTICE BLEASE did not participate.