Williams v. Southern Ry.

• Decision Date: 30 March 1904
• Citation: 47 S.E. 706,68 S.C. 369
• Parties: WILLIAMS v. SOUTHERN RY.
• Court: South Carolina Supreme Court

47 S.E. 706

68 S.C. 369

WILLIAMS v. SOUTHERN RY.

Supreme Court of South Carolina

March 30, 1904

Appeal from Common Pleas Circuit Court of Union County; Buchanan Judge.

Action by Rosa Williams, as administratrix of Wallace Williams against the Southern Railway. From a judgment for plaintiff defendant appeals. Affirmed.

C. P Sanders, for appellant. V. E. De Pass and W. W. Dixon, for respondent.

POPE C.J.

This action, under Lord Campbell's act, was brought to recover $1,990 damages from the defendant, alleging that, through the negligence of the defendant, one Wallace Williams a lad of 14 years, had his leg cut off by one of the defendant's trains on the 16th April, 1902, and died therefrom on the 3d July, 1902. That the negligence of the defendant consisted in failing to blow the whistle or ring the bell of the engine drawing the train, as required by law, and also running at a reckless speed across a street crossing in the town of Union, S.C. This was all denied by the defendant, who also alleged that, if it was guilty of negligence in failing to ring its bell or to sound the whistle on the engine, the intestate was guilty of contributory negligence by trying to get on its train while in motion, and, by failing to get on its train, fell so near or on its track that his foot was run over by a wheel of one of its freight cars.

The action came on for trial before his honor O. W. Buchanan as circuit judge, and a jury at the October term, 1902, of the court of common pleas for Union county. During the trial the circuit judge admitted some testimony, and refused to admit some testimony, which the defendant alleges was erroneous; and also alleges error in his charge to the jury in modifying defendant's sixth request to charge. The jury found a verdict for plaintiff of $400. The defendant then moved on the minutes of the court for a new trial, which motion was refused by the circuit judge. After entry of judgment upon the verdict, the defendant appealed therefrom upon the following grounds:

"(1) In refusing to allow the witness Mrs. Hawkins to be examined as to the frequency of boys running about and playing at the crossing where the injury occurred during the time trains were passing there, and in sustaining the objection of plaintiff's counsel to such testimony; it being respectfully submitted that such testimony was both competent and relevant to the issues involved in this case.

(2) In permitting the witnesses Gossett, Ford, and Rochelle to testify and state the declarations of Wallace Williams, the injured boy, on the ground they were a part of the res gestae; whereas it is respectfully submitted his honor should have held that these declarations were hearsay, and were not a part of the res gestae, and should have excluded them from the evidence.

(3) In not allowing the witness Jacob Rice to testify to the fact that the crossing where the injury occurred was a common gathering place and playground for little negro boys; it being respectfully submitted that this evidence was relevant and competent on the question of contributory negligence, and also as to whether the boy may not have been a trespasser.

(4) In not charging the defendant's sixth request without modification, to wit: 'Where one sues for damages on account of injuries causing death, he must prove that the deceased died from the injuries alleged;' and in modifying this request by instructing the jury that they should consider this in the light of and in connection with section 2139, vol. 1, of the Code of 1892. The error being, it is respectfully submitted: First. That his honor, in the light of the testimony of the physicians in this case, erred, in that this modification was calculated to lead the jury to believe that if one is injured, and this injury weakens his constitution, and renders him less able to resist disease than he would be if in sound health, that his heirs could recover damages from the persons inflicting the injury, if some disease not superinduced by the injury attacks the injured person and causes his death; whereas it is respectfully submitted that if one is injured in such manner so as to weaken his constitution, even if this does render him less able to resist disease than he would be if in sound health, then that the person inflicting the injury is not liable for the death of the injured person if he is attacked by and dies from a disease not superinduced by such injury. Second. That his honor's modification was calculated to lead the jury to conclude that under Lord Campbell's act, where one is injured, and death ensues from some disease, whether superinduced or not by the injury, that, because the system was weakened, those named in the act would have a cause of action against the one inflicting the injury; whereas his honor should have held that the injury must cause death, or at least be the proximate cause thereof, before a cause of action can exist under the act. Third. That by this modification his honor took away from the jury the question of the proximate cause of the death, and led the jury to believe that, if one is injured at a highway crossing, and the defendant failed to ring its bell or sound its whistle, as the statute required, and this injury weakened his constitution, and he was afterwards attacked by disease, whether superinduced by the injury or not, from which disease he died, then that his heirs could recover of the defendant' if the injury contributed to the death in any degree whatever; whereas it is respectfully submitted that under the law

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