to the witness, and also there appeared in said record the following words: "Kidneys

(3-22. Weuranalysis sp. gr. 1019 acid neg. M.)" which words were written not by Dr. Johns, nor by any one known to him. That this paper was preserved in said hospital, and that the witness obtained said record from the Grady Hospital just before he came into court to testify. So the matter was presented to the court by said witness. Objection was presented against the introduction of said hospital record into defendant's testimony. The court held that it was incompetent. Was this error? We think it was incompetent. As a record, if entitled to introduction, every part thereof should be introduced. The defendant's witness, in his testimony, said that parts thereof were in his handwriting, but other parts thereof were not only not in his handwriting, but were in the handwriting of some other person unknown to him; that it was his duty to make up said record; and that he remained as an officer of said hospital for nearly a year and a half after said record was made up and after the discharge of said patient as "cured." Now, it must be remembered that this writing called a "Hospital Record" is not what is known in law as a record, which in law is given great prominence, such as public acts of the Legislature, of a county or a state, a judicial record, of county, etc. These are usually presented under hand and seal of the Secretary of State in the case of public records, or under the hand and seal of clerk of court as to judgments or decrees. Really what is understood by this "Hospital Record" of the Grady Hospital, is a statement in writing not even indorsed or authenticated by the signature of the officer of said Grady Hospital. There is no solemnity of such a statement, attached thereto by law, under which the courts of the county allows it to be introduced in evidence per se. It falls under the head of written instruments, and, in section 565 of 1 Greenleaf on Evidence, at page 606, it is said: "Though the effect of the alteration of a legal instrument is generally discussed with reference to deeds, yet the principle is applicable to all other instruments. The early decisions were chiefly upon deeds, because almost all written engagements were anciently in that form; but they establish the general proposition that written instruments, which are "altered." in the legal sense of that term, as hereinafter explained, are thereby made void. The grounds of this doctrine are twofold. The first of these is that of public policy to prevent fraud, by not permitting a man to take chance of committing a fraud without running any risk of losing in the event it is detected. The other is to insure the identity of the instrument, and prevent the substitution of another without the privity of the party concerned. The instrument derives its legal virtue from its being the sole repository of the agreement of the par

ties, solemnly adopted as such, and attested by the signature of the party engaging to perform it. Any alteration, therefore, which causes it to speak a language different in legal effect from that which it originally spoke, is a material alteration." Unquestionably the circuit judge, to whom the question of the competency of the so-called hospital record was submitted, was justified when he held that the same was not entitled to be received, was correct, for the same was altered in material points, as was established by the testimony of Dr. Johns himself. This exception must be overruled.

3. Apart from the weakness of the testimony of Dr. Johns as to what ailment the plaintiff was under treatment for at the Grady Hospital, the history of her case as given by her, and what the plaintiff stated to him of her physical condition as written down by him in his report of the case, we think the circuit judge made no mistake in holding that such testimony was incompetent. We admit that it was in the power of the delendant to offer in evidence certain testimony by Dr. Johns, under so much of section 115 of 1 Greenleaf's Evidence, page 136, which reads as follows: "It is upon the same ground that certain entries made by third persons are treated as original evidence. Entries made by third persons are divisible into two classes: First, those which are made in the discharge of official duty, and in the course of professional employment; and secondly, mere private entries. Of these latter we shall hereafter speak. In regard to the former class, the entry, to be admissible, must be one which it was the person's duty to make, or which belonged to the transaction as part thereof, or which was its usual and proper concomitant. It must speak only to that which it was his duty or business to do, and not to extraneous and foreign circumstances. The party making it must also have had competent knowledge of the fact, or it must have been part of his duty to have known it. There must have been no particular motive to enter that transaction falsely, more than any other, and the entry must have been made at about the time of the transaction recorded. In such cases the entry itself is admitted as original evidence, being part of the res gestæ. The general interest of the party in making the entry, to show that he has done his official duty, has nothing to do with the question of its admissibility, nor is it material whether he was or was not competent to testify. It is deemed necessary to produce him. But, if he is called as a witness to the fact, the entry of it is not thereby excluded. If the party who made the entry is dead, or being called has no recollection of the transaction, but testifies to his uniform practice to make all his entries truly, and at the time of each transaction, and has no doubt of the accuracy of the one in question, the entry, unim

peached, is considered sufficient as original evidence, and not hearsay, to establish the facts in question."

Let us recall the facts as they appear from the record furnished us in this case by the defendant. It appears after the so-called "Hospital Record" had been refused to be admitted in evidence by the circuit judge, Mr. Cothran, one of the attorneys for the appellant, took the paper (known as "Hospital Record") and said to the witness Dr. Johns: "I believe you stated awhile ago that you made these entries?" Answer: "Yes, sir." Question: "In an interview with Mrs. Franklin?" Answer: "Yes, sir." Question: "Then state, Doctor, whether or not the entries you made then were correctly taken down from her statement to you?" Answer: "I can't remember exactly-" Question: "I don't ask you to remember exactly. I ask you if you took down correctly what she said. Don't you know?" Answer: "I can't remember." Question: "I don't ask you to remember. I ask you if you took down that statement. If it had not been made would you have taken it down?" Answer: "No, I would not." Mr. Cothran, addressing the court: "I submit he has a right to take that paper and state what she said to him." The circuit judge denied that right, unless he remembers what she said. We call attention to the fact that the paper presented to this witness by Mr. Cothran was the same paper which had been ruled out as incompetent. Granted that the question at last propounded to the witness related to only so much of the contents of that paper as was alleged therein to have been given by Mrs. Franklin; the reasons of the circuit judge for his refusal to admit the testimony is one thing, the legality of his ruling is another. As before remarked, we hold that he committed no error of law. First. The witness did not admit that he made such statement as coming from Mrs. Franklin while he was acting as an official of the hospital and in the course of professional employment. Second. The law which we have just quoted required that such entries belonged to the transaction or part thereof. Third. It could not be read to contradict the testimony of Mrs. Franklin, for she never had been asked if she ever made such admission, and the testimony was given in relation thereto while examined as defendant's witness. Fourth. The question was incompetent because there was no possible connection between Mrs. Franklin in the Grady Hospital and Mrs. Franklin engaged in a suit for damages against the Southern railway, unless she had sworn falsely in her testimony. One of the rules of law as to proposed testimony is its relevancy. The questions are confided to the circuit judge's discretion. Was there any substantial contradiction? Parallel columns will show what Mrs. Franklin admitted and what the statement by Dr. Johns was as to what Mrs. Franklin admitted to him:

Mrs. Franklin's Testi-
mony.
"C."

Had Drs. Hardin and Strickler; don't know anything about Dr. Ernest. Case, p. 96, f. 379.

4. Dr. Hardin said she had neurasthenia. Case, p. 96, f. 380 to f. 382.

5. Same operation was performed by, but she didn't know what-no cutting. Case, p. 27, f. 380; also, Case, p. 27, f. 105.

6. Operator: Dr. Hardin. Case, p. 96, f. 380. Case, p. 27, f. 105.

7. (a) Don't think she said that; her health had always been good, but at the time she was not strong, and was very weak. Case, p. 92, f. 364.

(b) Had three children, oldest five and youngest was over one year old. Case, p. 92, f. 366.

that last

(c) Did not say three weeks before child was born she fell against table and was in bed till child was born. Case, p. 93, f. 366.

(d) Did not say she was given bromides and opiates to prevent miscarriage. Case, p. 93, f. 367.

8. (a) Did not say that she had no trouble after labor until she got up, when she felt pelvis bone move when she walked. One side hurt her a little. Case, p. 93, f. 367 to 1. 368.

in

(b) Had not been good health for a year or so. Case, p. 93, f. 369. (c) Had peritonitus twice. Case, p. 93, f. 369. (d) Had bladder trouble but no heavy dragging feeling in pelvis. Case, p. 93, f. 370.

(e) Don't remember if she said she had yellowish discharge, but supposed she did if it was on the record. Case, p. 93, L. 370.

(f) Don't remember saying she had some pains in bowels. Case, p. 94, f. 371.

(g) Did not say bowels would swell up and get very tender. Case, p. 94, f. 371.

(h) Said she was very Case, p. 94, L.

nervous.

371.

(i) Said she was constipated. Case, p. 94, f. 371.

(a) Says she had no trouble after labor until she got up, when she got up felt pelvis bone move when she walked and gave her pain. (b) Has never been well since.

(c) Has had what doctors call peritonitus three times.

(d) Had irritable bladder and heavy dragging feeling in pelvis.

(e) Has yellowish discharge from vagina.

(f) Occasional pains in abdomen.

(g) Abdomen sometimes swells up and gets very tender.

(h) Patient very nerv

ous.

The exception should be overruled.

Fairly slightly

4. The circuit judge was careful in his charge to the jury to fully explain to them the issues raised by the pleadings, but he did use the language alleged by the appellant, telling them to read the pleadings so as to see what were the issues involved. He was careful, however, to impress the jury with their duty to understand what the issues of fact were. He did not omit his duty to charge the jury that his charge upon the law was his duty. If the circuit judge had failed to charge the jury as to what the issues of fact raised by the pleadings were, and if, on the contrary, he had simply referred them to ascertain from the pleadings themselves what were the issues involved, he would have been in error;

but he did not do this. We see no error as here complained of, and therefore this exception is overruled.

5. We will now consider exceptions 8, 9, and 10 in their order, as follows:

"(8) The circuit judge erred in his charge to the jury as follows: 'It [a common carrier] is bound to exercise as high a degree of care to protect a passenger from the wrong or injury of a fellow passenger as it is to observe, in order to protect all of the passengers from injury arising from the faulty construction of a railroad or the faulty running of the railroad train.' " The foregoing is a part of the charge itself, and the circuit judge in his charge in this connection also said: "It is bound, also, to exercise care to protect its passengers from insult or injury proceeding from the employés of a railroad company or a fellow passenger. And I may say here what I would ordinarily have said, and that is: There is a distinction between the obligation of a railroad to protect its passengers from accident arising from the construction of the road or from the handling and serving of the train, and the obligation of a railroad company to protect its passengers from injury inflicted by a fellow passenger. And that distinction arises from the difference between the two. A railroad iron on the track is an inert matter; the railroad is bound to see that whoever constructs the railroad shall keep it in good condition. A passenger upon a railroad train is an animate being, capable of thought and action -all of which is conceived and there comes a distinction. It is possible for a railroad company to go and look at a bar of iron and see whether it is in good order or not. It is impossible for a person to look on a human being and read what his thoughts are or what motives are prompting him or which are liable to prompt that human brain into action. That is what the human brain cannot conceive, and yet that places upon the railroad company the obligation to keep a proper and careful lookout for any improper conduct of the passenger. We can only judge of the safety of the bar of iron by inspecting it and can only judge of the danger of injury by watching the conduct and actions in respect to a fellow passenger; and, therefore, it is bound to keep watch over the passengers on the train. But you see the distinction that exists necessarily between the construction of the road, or the running of a train of cars, and the care it must exercise to see that one is not injured by a fellow passenger. It is bound to exercise as high a degree of care as is consistent with the circumstances in each case; but there is a distinction between the two cases, protecting a passenger from wrong or injury of a defective road, or operating the dead matter which constitutes the track and train. Now, the obligation is upon the railroad company to exercise care in both cases. and as high a degree of care as is consistent with the

circumstances surrounding each of the respective sources of danger; that is, the human being on one hand, and the railroad track and train on the other hand. And that is the distinction between the degree of care or responsibilities to which the law holds the railroad company, when it is apprised of the possibility or probability of a fellowpassenger to wrong or injure a passenger, and it is bound to observe as high a degree of care to protect a passenger from the wrong or injury of a fellow passenger as it is to observe in order to protect all the passengers from injury arising from the faulty construction of the railroad track or the faulty running of the railroad train.”

But, in addition to these observations by the circuit judge, he, at the request of the defendant, charged the jury: "(3) As between a carrier and a passenger with respect to the act or omission of the carrier and its servants towards the passenger regarding his safety, the law requires the highest degree of care consistent with the carrier's undertaking. This, however, is not the standard by which the carrier's liability to the passenger is to be determined when intervening acts of a fellow passenger or strangers directly cause the injury. It attaches only when the carrier and its servants could have prevented the injury, but failed to intervene to avert it, with knowledge or with facts which should have imparted knowledge that the injury was threatened." And, again, in its argument, the defendant admits that, as to the conduct of a fellow passenger or a stranger, the rule is this: "Before the carrier can be held liable to one passenger for insult or assault by a fellow passenger, it must appear that the agent or servants of the carrier either knew of the actual existence of a disturbance and made no effort to quell it, or had knowledge of the presence on board of disorderly or dangerous persons, from whose language or actions there was reasonable ground to apprehend danger and failed to take any precautions to avert it. Knowledge of the danger, or of facts and circumstances from which danger may reasonably be anticipated, is essential." Now, in the case at bar, the testimony of the plaintiff is that the conductor of defendant's passenger train told the plaintiff that one of the passengers seated in the same coach as the plaintiff and her daughter had given him trouble that day with two other ladies. And he also said: "I don't care what he is. He will not reach Atlanta or Kansas City." Then he said to the passenger: "This is the third time since 12 o'clock you have given me trouble, and I will show you you will not give me any more trouble." Passenger said, "You have made that threat before." The conductor himself admitted that he told the passenger: "That lady don't want to be bothered with you any more, and, if you attempt to bother her again, I will put you in the ditch, and you will not see Arkansas."

The allegations of the complaint set up distinctly the misconduct of the passenger to the plaintiff in the presence of the conductor. The testimony was responsive to those issues. Hence it was the judge's duty to charge the jury as to the duty of the railroad authorities to protect passengers. Not only was this true, but the defendant asked, in its third and fourth requests to charge, that the judge should so charge the jury. And the circuit judge so charged the defendant's request as presented. This exception should be overruled.

As to exception 9, which alleges error in the charge of the circuit judge as follows: "When a railroad company is put on notice of facts that a prudent railroad company would take notice of, that there was danger arising from a fellow passenger, then the railroad is bound to exercise as high a degree of care to protect its passengers from wrong or injury produced from a fellow passenger as from injury arising from the construction of the railroad itself, the running of the train, and other matters of that kind." The defendant admits "that the railroad, under such circumstances, is chargeable with ordinary care to protect the threatened injury," but it suggests that the circuit judge was in error when he held that such railroad was subject to the same rule in order to avoid the conduct of the fellow passenger as it would be in case of faulty construction of the railroad itself. When the whole charge is regarded, there seems to be no infringement of the rule of law in this charge. The defendant, in its fourth request to charge, stated: "A railroad company is liable to its passengers for an injury by a fellow passenger only when the conduct of this passenger has been such before the injury as to induce a reasonably prudent and vigilant conductor, or other officer, to believe that there was reasonable ground to apprehend violence and danger to other passengers, and in such cases it is the duty of the conductor to use al reasonable means to prevent such injury, and if he neglects his duty the company is responsible, but otherwise not." The circuit judge made this charge as here requested. Surely, the circuit judge should not be blamed where he adopted the very language of the defendant itself. This exception should be overruled.

The tenth exception is as follows: "It [a railroad company] can only judge the danger of the injury from a fellow passenger by watching the conduct and the actions in respect to a fellow passenger; and therefore it is bound to keep a watch over the passengers on the train." This exception is but a short quotation from the general charge of the circuit judge, and, when it is weighed along with other portions of the charge, it will be found utterly unobjectionable. What he meant was that, when the conduct of the fellow passenger was known by the conductor to be vicious, as the testimony showed in

the case at bar in exception 8, then the conductor should be on the alert. As the defendant, in the argument of its counsel, admits that the circuit judge admitted that there was a difference between cases when injuries to passengers resulted from faulty construction or condition of roadbeds, or other cases where passengers were injured by fellow passengers. Still, the cases in our books of reports show that the defendant is liable for injuries when the conductor, or other servant, is negligent when he knows the bad conduct of a fellow passenger beforehand, and adopts no precautions to protect his passengers. As was said by Chief Justice Gibson of Pennsylvania: "Precaution becomes a duty only when there is a reasonable ground to apprehend danger." Scheffer v. Railroad Co., 105 U. S. 252, 26 L. Ed. 1070; Tall v. Baltimore Steam Packet Co. (Md.) 44 Atl. 1007, 47 L. R. A. 123; Railroad Co. v. Burke, 53 Miss. 200, 24 Am. Rep. 689; 5 A. & E. Encyclopædia (2d Ed.) 553; 6 Cyc 602. This exception should be overruled.

6. Of course, a railroad company, when its conductor is apprised of the dangerous or vicious conduct of a fellow passenger to other passengers on the same train, is bound to exercise great care or watch to prevent such dangerous or vicious conduct. In the case at bar, it was in testimony, as coming from the conductor, that this same fellow passenger had already insulted ladies on this train. The moment, therefore, when some of this bad conduct was being manifested by this bad fellow passenger, the conductor was bound to the exercise of great care to protect his passengers therefrom. It would be a sad day for our people when passengers, especially women, can run the risk of negli gence on the part of conductors on such trains in failure to protect them from the vicious. This exception should be overruled. 7. The charge here complained of is of no practicable moment. The lessor railroad had confided its railroad to a railroad lessee, so, therefore, what injury could result to the lessor railroad by saying it was under the law obliged to operate its railroad? This exception is overruled.

In my opinion, it is the judgment of this court that the judgment of the circuit court should be affirmed.

(74 S. C. 377)

SULLIVAN v. SOUTHERN RY. (Supreme Court of South Carolina. May 25, 1906.)

1. CARRIERS-BAGGAGE.

Where a passenger buys a ticket from a point on the carrier's line to a station on another line with which a connection is made at a junctional point, the carrier must check the baggage to the point of destination and cannot require the passenger to recheck at the junctional point.

[Ed. Note. For cases in point, see vol Q Cent. Dig. Carriers, § 1506.]

2. SAME-REFUSAL TO CHECK-DAMAGES.

Where a ticket agent refused to check the baggage of a passenger to a point on an other line to which the passenger had bought a ticket, because under the rules of the company he could only check to the junctional point, and on return of the check to the junctional point he threw the baggage out of the car and refused to take further charge of it, it authorizes a recovery of punitive damages by the passenger.

3. SAME-EXCLUSIVE REMEDY.

Code, 1902, § 2166. prescribing a penalty for refusing to check baggage, is not exclusive, and does not prevent a passenger from suing for damages suffered.

Gary, A. J., and Woods, J., dissenting. Appeal from Common Pleas Circuit Court of Greenwood County; Watts, Judge.

Action by B. A. Sullivan against the Southern Railway. Judgment for plaintiff, and defendant appeals. Affirmed.

T. P. Cothran, for appellant. Sheppards, Grier & Park, for respondent.

POPE, C. J. The plaintiff sought by this action $1,000 damages on account of the alleged willful and malicious acts of the defendant in refusing to check the baggage of the plaintiff, who was a passenger with a ticket from Abbeville to Greenwood on the 19th of September, 1902, and in throwing said baggage from the train and allowing it to remain uncared for.

The history of the case as taken from the appellant's brief is about as follows: "That on September 19, 1902, the plaintiff purchased at Abbeville a ticket from Abbeville to Greenwood, and requested the agent to check his baggage accordingly, paying him 45 cents excess baggage charges; the agent, however, checked the baggage to Hodges; plaintiff went to the agent again and directed him to check to Greenwood; the agent willfully and maliciously refused to do so, repaid the plaintiff 45 cents and cast the trunk off the train, informing the plaintiff that it might lie out on the ground in the weather so far as he was concerned, that it should not be carried into the depot or baggage room; that the train was moving off then, and plaintiff had to wait until he got to Hodges before notifying a friend at Abbeville to look after the baggage and send it to him at Greenwood; that his damages were $1,000. The defendant denied the material allegations of the complaint as above set forth. The testimony was conflicting upon what occurred at the depot in Abbeville between the plaintiff and the agent of the company. These facts, however, are beyond dispute: At the time in question, the last train leaving Abbeville for Hodges was the 2:20 p. m. train, the one upon which the plaintiff was a passenger. It connected at Hodges with the train for Greenville; a passenger for Greenwood would have to lie over at Hodges from 2:45 p. m. till 9 or 10 o'clock that night, when the train from Greenville would arrive at Hodges and carry him on to Greenwood. The defendant had is

sued instructions to the agent at Abbeville not to check the baggage through to points beyond Hodges, upon the Abbeville Branch, which did not connect at Hodges with the main line train for the passenger's destination. The reason for this rule was that all baggage from Abbeville to points beyond Hodges was handled directly by the baggage masters upon the two trains; the agent at Hodges having nothing to do with any baggage except that checked to or at Hodges. A ticket was sold to the plaintiff from Abbeville to Greenwood and his baggage was checked to Hodges. The plaintiff insisted that his baggage should be checked to Greenwood; the agent insisted that under his instructions he could not do so; the plaintiff handed back the Hodges checks to the agent, saying that if the baggage could not be checked to Greenwood he need not check it at all; the excess baggage charge was returned to the plaintiff; the baggage was taken off the train and remained at the station until the plaintiff had it carted over to the Seaboard depot and sent to Greenwood; he remained at Hodges from 2:45 p. m. till about 9 or 10 o'clock that night, when he boarded the train from Greenville and arrived at Greenwood in due time; he did not need his baggage until the next morning, when he received it on the Seaboard; his actual damages were 45 cents; the price of a through ticket from Abbeville to Greenwood was 45 cents, 25 cents less than the straight fare from Abbeville to Hodges and thence to Greenwood."

We think it is well to produce the judge's charge and the grounds of appeal therefrom:

Judge's Charge.

"This is an action brought by the plaintiff here against the defendant to recover damages. He alleges in his complaint that he was a traveling salesman, and carried with him trunks of samples of wearing apparel. He states that it was the custom of the defendant, and of other railroads in this state, to carry the samples of traveling salesmen as baggage upon the same terms and conditions that they carried personal baggageexcept that the railroad requires them to pay excess for the carrying of trunks which contain samples. He states that he carried his trunks of samples from Greenwood, S. C., to Abbeville, S. C., and that the defendant was fully informed that the trunks contained samples; that he paid therefor the sum of 45 cents as excess for carrying this baggage. He alleges that on the 19th day of September, 1902, he went to the depot of the defendant company at Abbeville, S. C., that he paid for that ticket the full fare asked.

He states that he requested the agent of the said defendant company at Abbeville, S. C., to check his trunks from Abbeville, S. C., to Greenwood, S. C., point to which he had purchased said first-class ticket; that he paid