Bowick v. American Pipe Mfg. Co.

• Decision Date: 07 July 1904
• Parties: BOWICK v. AMERICAN PIPE MFG. CO.
• Court: South Carolina Supreme Court

48 S.E. 276

69 S.C. 360

BOWICK v. AMERICAN PIPE MFG. CO.

Supreme Court of South Carolina

July 7, 1904

Appeal from Common Pleas Circuit Court of Charleston County Aldrich, Judge.

Action by T. S. Bowick against the American Pipe Manufacturing Co. From a judgment for plaintiff, defendant appeals. Affirmed.

Mordecai & Gadsden, for appellant. Legare & Holman and F. M. Bryan for appellee.

GARY A. J.

This is an action for damages alleged to have been sustained by the plaintiff through negligence on the part of the defendant.

Paragraph 1 of the complaint alleges the corporate existence of the defendant, and that it was engaged in the business of laying pipes and mains through the streets of the city of Charleston for the purpose of constructing a system of waterworks therein. Paragraphs 2 and 3 contain the following allegations:

"(2) That heretofore, on the 5th day of April, A. D 1903, the defendant above named, in the course of its said business, caused to be cut a deep excavation across Columbus street, one of the public streets of the city of Charleston at a point where the same passes through Hampstead Mall, and that the said defendant negligently and carelessly failed and omitted to display lights or to give other warning of the presence of such excavation.

(3) That heretofore, on the 5th day of April, 1903, between the hours of seven and eight o'clock in the afternoon, plaintiff was driving a vehicle over and along Columbus street, drawn by a horse, and that, by reason of the failure of the defendant to display lights, or give notice of said excavation as aforesaid so cut across Columbus street, the plaintiff was unaware of the existence of said excavation, and he drove into the same. ***"

The defendant denied the material allegations of the complaint, and set up the defense of contributory negligence. The jury rendered a verdict in favor of the plaintiff.

The defendant's first exception is as follows: "Because the presiding judge erred in sustaining the objection of the plaintiff's counsel to the following question asked Lieutenant of Police Steenken, a witness for the plaintiff by defendant's counsel, upon the cross-examination of that witness, to wit: 'Was it your observation that the light was lit, or not lit, when these trenches were open over town?' The question having been asked to test the accuracy of the memory and knowledge of the witness with reference to the location of lights in the city by the defendant company, and the witness having testified as to the location of lights in other parts of Columbus street than the place in question." When said question was asked, the plaintiff's attorney objected to it on the ground that it was irrelevant, whereupon the court said: "My understanding is that the object of the question is as to the habit of defendant at other places. Objection sustained." The defendant's attorneys did not then state that the question was asked to test the accuracy of the memory and knowledge of the witness with reference to the location of lights by the defendant. When...