Sims v. Southern Ry. Co.

• Decision Date: 12 February 1901
• Citation: 37 S.E. 836,59 S.C. 246
• Parties: SIMS v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

37 S.E. 836

59 S.C. 246

SIMS v. SOUTHERN RY. CO.

Supreme Court of South Carolina

February 12, 1901

Appeal from common pleas circuit court of Union county; O. W Buchanan, Judge.

Action by Samuel Sims against the Southern Railway Company. From a judgment of the circuit court modifying a judgment of the magistrate's court in favor of plaintiff, defendant appeals. Reversed.

The following are defendant's exceptions: "(1) Excepts because the presiding judge erred, as matter of law, in failing and refusing to sustain defendant's second exception to the magistrate's judgment herein, to wit 'For that the said magistrate erred, as matter of law, in excluding secondary evidence by defendant as to an alleged bill of sale or mortgage given by plaintiff over the mare in question, it having appeared that the mortgagee had been subp naed duces tecum to produce the same, and it further appearing that the same was not then in possession of said mortgagee, but had been delivered to and was in possession of plaintiff himself, who, upon demand by defendant during the trial refused to produce the same.' (2) Excepts because the presiding judge erred, as matter of law, in failing and refusing to sustain defendant's eighth exception to the magistrate's judgment herein, to wit: 'For that the said magistrate erred in ruling as inadmissible and incompetent the question propounded to the witness Emslie Nicholson, "What did it cover?" the said witness having just testified that a bill of sale had been given to him, or assigned to him by Crawford & Aycock, executed by Samuel Sims, the plaintiff; whereas it is submitted that the witness Nicholson, being the mortgagee or party to whom the bill of sale had been assigned, and having testified that he did not then have it, and having been regularly subp naed by said magistrate duces tecum, this evidence was competent and admissible as going to show that plaintiff was not the owner of the mare in question,--an allegation of the complaint material to the case, and which defendant by its answer denied.' (3) Excepts because the presiding judge erred, as matter of law, in failing and refusing to sustain defendant's third exception to the magistrate's judgment herein, to wit: 'For that the said magistrate erred in refusing defendant's second request to charge "That, if the jury believe from the evidence that the train which it is alleged struck the mare in question was running at a lawful rate, and had the customary appliances and force of trainmen, and the mare, when seen by the engineer, or might, with due care, have been seen, was so close that the train could not be stopped, with ordinary care and diligence, in time to avoid striking it, then the plaintiff cannot recover,"'--whereas it is submitted that the request set forth the law applicable to the case and, having been refused by the magistrate, the jury was left entirely without any instructions as to the law which should guide them in passing upon the degree of care required of and used by the defendant in this case. (4) Excepts because the presiding judge erred, as matter of law, in failing and refusing to sustain defendant's fourth exception to the magistrate's judgment herein, to wit: 'If you find from the evidence that plaintiff's mare, or the mare in question, was grazing near the railroad track, and, becoming frightened at an approaching train, ran a short distance, and then jumped upon the track, and was struck and killed, and that ordinary care was used by the engineer after the animal was in danger of being struck, then your verdict must be for the railroad company.' The same, it is submitted, was a correct proposition of law applicable to the case. (5) Excepts because the presiding judge erred, as matter of law, in failing and refusing to sustain defendant's sixth exception to the magistrate's judgment herein, to wit: 'That, if the jury find there was a chattel mortgage over the animal in question, then the plaintiff cannot recover, because he is not the owner.' (6) Excepts because the presiding judge erred, as matter of law, in failing and refusing to sustain defendant's twelfth exception to the magistrate's judgment herein, to wit: 'For that the said magistrate erred in charging the requests submitted by plaintiff, to wit: "No. 1, quoting section 1685 of Revised Statutes, and request No. 2, quoting section 1692 of Revised Statutes; whereas it is submitted that, in view of plaintiff's admission as to the point of the accident, these requests were to the prejudice of defendant."' (7) Excepts because the presiding judge erred, as matter of law, in failing and refusing to sustain defendant's thirteenth exception to the magistrate's judgment herein, to wit: 'For that the said magistrate erred in charging the jury the plaintiff's third, fourth, fifth, and sixth requests to charge, submitted in writing. The same, it is respectfully submitted, having no application to the case at bar, resulted to the manifest injustice of defendant.' Plaintiff's third, fourth, fifth, and sixth requests were as follows: (3) When the statute requires the whistle of a moving railroad engine to be blown and its bell to be rung continuously for 500 yards before crossing highway, a failure to do so is evidence of negligence; and it is not necessary to prove the damages in dollars and cents, but from the facts and circumstances submitted to the jury they estimate the damages. (4) In an action under section 1692, Rev. St., against a railroad company for damages resulting from its negligence to blow a whistle or ring the bell, it is not necessary to show that such negligence was the proximate cause of the injury. (5) That by the term 'traveled place,' as used in the statute, is meant a place across which not only the public have been accustomed to travel, but where they have a right to travel; and all that the statute requires is that the neglect to give the prescribed signals shall contribute to the injury; and when a person is injured by collision with an engine of a railroad company at a crossing, and it appears that such company neglected to give the prescribed signals, such neglect contributes in law to the injury. (6) If the testimony satisfies the jury that the requirements of the act were not complied with, or imperfectly complied with, and such failure contributed to the casualty, then from such failure the jury can find that railroad company was negligent. (8) Excepts because the presiding judge erred, as matter of law, in failing and refusing to sustain defendant's fourteenth exception to the magistrate's judgment herein, to wit: 'For that the said magistrate erred in charging plaintiff's seventh request to charge, to wit: "That, the defense of the defendant railroad company being in part 'contributory negligence' on part of plaintiff, makes such defense an affirmative one, and must be proved by the railroad company as other affirmative defenses, to wit, by the preponderance or greater weight of their testimony;" whereas it is submitted, no such defense as "contributory negligence" having been pleaded or interposed by defendant, such instruction from the court was erroneous, in that it submitted to the consideration of the jury a defense neither pleaded nor sought by the evidence to be made, and was to defendant's prejudice."'

E. M. Thompson, for appellant.

V. E. DePass, for respondent.

McIVER C.J.

This was an action, commenced in a magistrate's court, to recover damages for the killing of a horse belonging to plaintiff by the alleged negligence of the defendant company...