Broom v. Atlantic Coast Line R. Co.

• Citation: 80 S.E. 616,96 S.C. 368
• Parties: BROOM v. ATLANTIC COAST LINE R. CO.
• Decision Date: 13 January 1914
• Court: United States State Supreme Court of South Carolina

80 S.E. 616

96 S.C. 368

BROOM v. ATLANTIC COAST LINE R. CO.

Supreme Court of South Carolina

January 13, 1914

Appeal from Common Pleas Circuit Court of Sumter County; Geo. W Gage, Judge.

Action by Samuel M. Broom against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

P. A Willcox, of Florence, and Mark Reynolds and L. W. McLemore both of Sumter, for appellant.

L. D. Jennings, John Clifton, and R. D. Epps, all of Sumter, for respondent.

FRASER J.

This is an action for damages. The plaintiff was mail clerk on a passenger train of the defendant. As the train approached Creston, a station on the defendant's road, the train was derailed. There is no dispute as to the cause of the derailment. There was a nut on the rail, and, when the wheel struck the nut, it was thrown off of the rail and produced the wreck. The track between and at the place of the accident and Creston was downgrade. There were three questions in the case: (1) Should the motion for continuance have been granted? (2) How did the nut get on the track? (3) Did the wreck produce injury to the plaintiff? This was tried and resulted in a judgment for the plaintiff. From this judgment the defendant appealed upon six exceptions, which will be considered in order.

I. (1) "In overruling defendant's motion for continuance, in that upon the showing made defendant's counsel were entitled to have the case continued until the following term, and it was abuse of discretion not to grant the motion."

This exception cannot be sustained. It is true his honor consulted other attorneys at the same bar, as to the propriety of continuing this and other cases because of the illness of one of defendant's counsel; but, in the absence of any showing to the contrary, we must assume that there were attorneys at the Sumter bar upon whose discretion he could rely. The affidavit of Mr. Jennings was not before the court and could not have been the basis of his honor's action. It will be further noted that the advice which Judge Gage received only confirmed his determination and did not control it. The great skill shown by the remaining counsel in the conduct of the case was full vindication of the soundness of his judgment.

II. (2) "In permitting the witness Cuttino to give his opinion as to whether or not a hand or lever car would stand on the grade involved in the case; whereas, such testimony should have been excluded upon the objection of the defendant, as it involved merely the expression of an opinion, and the witness was not shown to be qualified to give such an opinion, the objection, ruling, and evidence being as follows: 'Q. From the experience you had with hand cars, tell the jury whether or not, in your opinion, a hand car or lever car would stand on that particular track anywhere there, leaving the public road coming towards Lone Star, without being shocked? Mr. McLemore: We object. The witness has not qualified as an expert to testify on that. Court: I don't think it takes an expert to testify to that. Q. Go ahead, Mr. Cuttino. A. Why, anywhere in the neighborhood of that road, 40 or 50 feet, going towards Lone Star, I don't believe a car would stand there of its own weight, if not chocked.' "

(3) "In permitting the witness Finn to give his opinion as to whether or not a hand car would stand on the grade involved in the case; whereas, such testimony should have been excluded upon the objection of defendant, as it involved merely the expression of an opinion, and the witness was not shown to be qualified to give an opinion, the objection, ruling, and evidence being as follows: 'Q. Tell the jury whether in your opinion a hand car being pushed over this railroad up there, and get lumber off, whether it would stand on that grade without being chocked? Mr. McLemore: I object. No foundation laid so as to allow this witness to testify whether a hand car would stand that way. He is a locomotive engineer, running a train, and has not testified he ever used one in his life. Q. Have you ever used a lever car? Court: I think he can testify. Note the objection. Q. Go on and tell the jury whether, in your opinion, the hand car in the ordinary use would stand on the grade without being chocked? A. No, sir; I don't think, ordinary use put to, it would stand there without somebody to hold it on.' "

These exceptions will be considered together and neither can be sustained. Both witnesses testified that they were familiar with the grade. Both had had experience with the handling of cars. It is true they had not handled this particular kind of car, but the principals governing them were said to be the same, and the opinion was competent.

III. (4) "In overruling defendant's motion for direction of verdict in its favor made at the close of all the evidence upon the ground that there was no evidence that the derailment of the train was caused by the negligence of defendant, and in overruling motion for new trial upon same ground; whereas, the motion should have been granted upon the grounds and for the reasons urged in support thereof."

The statement of Judge Gage in ruling on these motions is clear and convincing, and is as follows: "Court: I read that during the argument. I have seen many a man convicted on circumstances less strong than these. The proof showed that at the outside, 20 minutes after the hands left the...