Mack v. South-Bound R. Co.
Decision Date | 19 April 1898 |
Citation | 29 S.E. 905,52 S.C. 323 |
Parties | MACK v. SOUTH-BOUND R. CO. (two cases). |
Court | South Carolina Supreme Court |
Appeal from common pleas circuit court of Lexington County; O. W Buchanan, Judge.
Separate actions by Stewart Spearman Mack, by his guardian and litem and Barnett Salley Mack, against the South-Bound Railroad Company. The actions were consolidated, and tried together. Judgement for both plaintiffs. Defendant appeals on exceptions. Affirmed.
C. J C. Huston and Wm. H. Lyles, for appellant.
Abney & Thomas, for respondents.
The above-entitled actions were commenced on the 15th of August, 1895, and by consent were tried together before his honor, Judge Buchanan, and a jury, at the September, 1897, term of the court for Lexington county. The fifth paragraph of the first cause of action in the first of the above-entitled actions is as follows: The specifications of negligence are alleged in paragraph 6 thereof as follows, to wit: "(6) That the South-Bound Railroad Company, its servants, agents, lessee, or lessees, were negligent in this: That although the plaintiff and the mule he was endeavoring to pull away from the track could be seen for at least one-half a mile, and were in plain and open view of the engineer driving the locomotive (the track at said point being perfectly straight), and although the said train could have been easily stopped before it reached the point on said track where the plaintiff and mule were, the engineer in charge of said locomotive made no effort whatsoever to stop or diminish the rate of speed of the train, nor did he give any signal, either by the sounding of the steam whistle of the locomotive, or by ringing of the bill thereon, nor did he take or exercise any prudence or foresight, or do anything whatsoever to prevent the running of the said train upon the plaintiff and said mule, but that the said engineer and persons in charge of said locomotive and train, although they saw, or could easily have seen by the exercise of the slightest outlook or observation, upon the track in front of said advancing locomotive and train, the plaintiff and the mule, and did see, or could have easily seen by the slightest observation or outlook from the train, that he was a child of tender years, and endeavoring to get his mule across the track, and although the said engineer or persons in charge of said locomotive saw, or could have easily seen by the exercise of any prudence or outlook whatsoever, that the plaintiff was not aware of the approach of the train, yet the said engineer, or persons in charge of said locomotive and train, carelessly, negligently, without any prudence or foresight or observation or outlook, which he should have kept upon the track before him, ran the said locomotive and train at a reckless rate of speed over said plaintiff, and against said mule, and so injured and frightened the plaintiff as above stated, and instantly killed the mule, and that by reason of the said negligent act and want of care on the part of the defendant, its servants, agents, lessee, or lessees, the plaintiff was damaged, in his person, mind, and health, twenty-five hundred dollars." The allegations of the second cause of action set forth in said complaint are substantially the same as those contained in the first cause of action, except the acts of negligence on the part of the defendant are alleged to have been willful, malicious, wanton, and reckless, by reason of which the plaintiff claimed exemplary damages. The second complaint was brought by Barnett Salley Mack, the father of Stewart Spearman Mack, in which the allegations are substantially the same as those set forth in the first cause of action in the first complaint. In the first cause of action he claimed damages for the killing of his mule, which he valued at $175. The second cause of action alleged in said complaint was for the injuries alleged to have been sustained by his son; and the plaintiff asked damages for the loss of services of his son, and expenditures for medicines, medical attention, and care of his son, in the sum of $1,200. The defendant answered both complaints, and, in effect, denied generally the allegations of the complaint, and set up the defense of contributory negligence, both on the part of the father and the son. At the close of the plaintiff's testimony the defendant made a motion for a nonsuit, which was refused. The jury rendered a verdict in favor of Stewart Spearman Mack for $650, and a verdict for Barnett Salley Mack for $335. The defendant appealed, upon exceptions, the first of which is as follows:
"(1) Because, against the objection of the defendant, his honor, the presiding judge, allowed the witnesses produced for the plaintiff to testify as to the failure of the train which caused the accident to give the statutory signals upon approaching the Augusta Road crossing, and other road crossings." Some of this testimony was admitted without objection, and it is questionable whether the objection was properly interposed to the other part of said testimony. Furthermore, it does not appear that the presiding judge ruled upon the admissibility of said testimony. But said testimony tended to show an utter disregard of the requirements of law as to the manner of running the train, and was responsive to the allegation of reckless negligence. This exception is therefore overruled.
The second exception is as follows: The testimony was irrelevant, but harmless. This exception is overruled.
The third exception is as follows: "(3) Because his honor the presiding judge, against the objection of the defendant, allowed other witnesses to testify as to the character of the crossings on the Augusta Road...
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