Nelson v. Georgia, C. & N. Ry.

• Decision Date: 19 April 1904
• Citation: 47 S.E. 722,68 S.C. 462
• Parties: NELSON v. GEORGIA, C. & N. RY.
• Court: South Carolina Supreme Court

47 S.E. 722

68 S.C. 462

NELSON v. GEORGIA, C. & N. RY.

Supreme Court of South Carolina

April 19, 1904

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

Action by Jas. F. Nelson against the Georgia, Carolina & Northern Railway. From a judgment for defendant, plaintiff appeals. Affirmed.

W. R Richey and F. P. McGowan, for appellant. J. J. Glenn and N B. Dial, for respondent.

JONES J.

This action was brought to recover damages for personal injuries alleged to have been sustained by plaintiff through the negligence of the defendant, and resulted in a verdict and judgment for the defendant. Plaintiff's appeal involves two questions:

1. Whether the court erred in excluding the declarations of F. H. Harold, the conductor, made after the collision in which plaintiff was injured; it being claimed that such declarations were admissible as part of the res gestae, and as the statement of the representative of the defendant company within the scope of his agency.

In order to show precisely how the question arose, and the exact ruling of the circuit court, we quote from the "case" as follows: "Q. Was the conductor there? A. Yes, sir; he came down there and asked me was anybody hurt. The mail agent was knocked down, and I told him I had a lick over the head and was mashed in the stomach, but I did not know that it amounted to very much. It hurt me all the evening. Q. What were these cars shoved with? What was attached to them? A. The engine. Q. Was the engine attached to them when they struck the mail car? A. I declare, I do not know. All I know is what the conductor said. Mr. Glenn: We object to that. Mr. Richey: I think that he can tell what the conductor said. That is a part of the res gestae. Mr. Glenn I understand you to say that the conductor told you afterwards? A. I was down there, and he came there right after the accident. Mr. Richey: The conductor, may it please your honor, was there representing the master, and it was just the same as the railroad company itself speaking through the conductor. What he said there, I think, is perfectly competent to come in. Mr. Glenn: In the first place, your honor, it depends entirely upon what they were talking about. He certainly would not have the right to bind the company for matters that did not come within his business. He is not the general agent of the company. In fact, I do not understand that he has proven yet the extent of his authority, or anything of the kind. Mr. Richey: Who was the conductor in charge of the train? A. It was his first trip. He was down there the first time I ever seen him. Harold. I don't know for certain that was his name. Q. You have been connected with the railroad some time? A. Yes, sir. Q. What is the duty of the conductor? A. Running the train. Q. Who has supervision over the hands and engineer? A. The conductor. Q. Now, what was it the conductor said when he came down there to the mail car after the accident? Mr. Glenn: We object. The Court: I do not know what the answer will be. Did the conductor speak to you in reference to the accident? A. Yes, sir; he did. Mr. Richey We can now ask him what he said. The Court: It is owing to what he said. If he was the master, and gave orders, he can state what order he gave him, but he cannot recite any words as to how it happened, in his opinion. Mr. Richey: I did not ask him how it happened. The Court: You know what his answer is going to be. I don't. This is your witness, and you are supposed to know what you are going to prove by him. Mr. Richey: What did the conductor say in reference to that accident? Mr. Glenn: We object to that. The Court: The objection is sustained, so far as the court is now advised by the...