Mack v. South-Bound R. Co.

Decision Date19 April 1898
Citation29 S.E. 905,52 S.C. 323
PartiesMACK v. SOUTH-BOUND R. CO. (two cases).
CourtSouth 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.

GARY A. J.

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: "(5) That on the afternoon of the said mentioned day, between six and seven o'clock, the plaintiff Stewart Spearman Mack, as was his wont and customary duty, was sent by his father to drive the cows from the pasture, which was on the south side of said railroad, at or near the seven-mile post. That while engaged in driving said cattle from said pasture to the house of said Barnett Salley Mack, which was on the north side of said railroad track (it being necessary to cross the track at a private crossing which had been in use for years, and which use was well known to the defendant), the plaintiff, who was riding a mule, being unable to control said mule, on account of his tender age and lack of strength, was carried by said mule, which had become unruly and unmanageable, in and upon the track of defendant, at or near the said seven-mile post; and, in endeavoring to get said mule off said track, the plaintiff alighted, and was pulling the said mule, by the bridle and a plow line attached thereto, away from and across said track; and, while so engaged, his attention being absorbed in his efforts to control the mule and prevent him from going further down the track and getting away from him (being in open and plain view of an approaching train from the south for half a mile or more), a locomotive, with a train of cars attached, belonging to the defendant, its agent, lessee, or lessees, without any signal or warning whatsoever, running at a rapid and reckless rate of speed towards Columbia, came upon the plaintiff, who was not aware of its approach, on account of his being so engaged in endeavoring to get the mule off said track, and struck the mule, and instantly killed the same. The plaintiff, in order to save his own life, threw himself down between and along the cross-ties just outside of the rail, bruising and injuring his person, and just barely escaped being struck by the locomotive and cars of said defendant, its servants and agents, which said locomotive and cars ran immediately over and above the plaintiff at a rate of speed of more than sixty miles an hour; and being of such tender age, inexperienced, and ignorant of the operation of railroads and the running of locomotive cars thereon, and owing to the great and imminent danger in which he was, and the reckless movement of said train over him, was terribly frightened, his nervous system was shocked, his mind was affected and partially destroyed, his reason unbalanced, and he for a long time was made ill and sick, and suffered great mental anguish and physical pain, arising from the terrible shock to his nervous system and the fright which he received; and by reason thereof he was incapacitated from performing or attending to his ordinary duties, and his capacity for work greatly diminished, and he will for a long time, and probably will for the balance of his life, be affected in mind and body, and it will, to great extent, affect his means of making a livelihood and of advancing his happiness in life. That prior to said accident and injury he was perfectly healthy and sound, both physically and mentally, and had every reason to think and believe that he would so continue; but the injury to his mind and body by reason of such fright and nervous shock has greatly diminished his capacity for performing his duties, and will hereafter diminish and affect his capacity and means of acquiring property, and means of advancing his happiness in life, which he had a right to expect that he would be fully able to do, and acquire all those means of happiness which he, as a perfectly healthy and sound person could have acquired, and he will hereafter pass through life subject to the effects which said fright and nervous shock have produced." 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: "(2) Because his honor, the presiding judge, allowed the witness John Weston to testify, against the objection of the defendant, in answer to the question, 'Who travels that last road,--what kind of people?' When it had been admitted that the accident had not occurred at the crossing, and the crossing had nothing to do with it." 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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