Bennett v. Columbia Elec. St. Ry. Light & Power Co.

• Decision Date: 18 July 1912
• Citation: 75 S.E. 277,92 S.C. 72
• Parties: BENNETT v. COLUMBIA ELECTRIC ST. RY., LIGHT & POWER CO.
• Court: South Carolina Supreme Court

75 S.E. 277

92 S.C. 72

BENNETT v. COLUMBIA ELECTRIC ST. RY., LIGHT & POWER CO.

Supreme Court of South Carolina

July 18, 1912

Appeal from Common Pleas Circuit Court of Richland County; John S Wilson, Judge.

"To be officially reported."

Action by Thomas Bennett, by H. P. Bennett, his guardian ad litem against the Columbia Electric Street Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Elliott & Herbert, of Columbia, for appellant. W. H. Cobb, of Columbia, for respondent.

GARY C.J.

This is an action for damages alleged to have been sustained by the plaintiff when he was about a year and a half old through the negligence and recklessness of the defendant.

The allegations of the complaint, material to the questions involved, are as follows: "That on or about August 7 1910, the defendant, while running one of its cars on its track through the Olympia Mill village, on Olympia avenue, at or near its intersection with Ninth street, which is also one of the public highways of said Olympia Mill village, on a level grade, at a rapid and dangerous rate of speed, and in violation of the rules of said defendant, requiring all cars to be stopped when they cross the Bluff road, a public highway about 400 feet east of where Ninth street crosses said Olympia avenue, without warning or signal, and without having air or other brakes than hand brakes on said car, ran against said Thomas Bennett, who was on and crossing said Olympia avenue at its said intersection with Ninth street. That the aforesaid injuries to the plaintiff were caused by the carelessness, negligence, willfulness, recklessness, and wantonness of defendant, its agents, and servants in allowing the car to be run at a rapid and dangerous rate of speed; in that, well knowing said crossing to be dangerous and collisions likely to occur thereat, it failed to stop at the Bluff road crossing, as the rules required, thereby enabling the conductor and motorman to get a clear view of and down said Olympia avenue, to and past the Ninth street crossing, and see if it were obstructed, in failing to give any signal to warn plaintiff of its approach, in allowing said car to be run with worn and defective brakes and appliances for stopping same, in that it failed to bring said car to a stop, and avoid running against and injuring said plaintiff, in failing to keep a proper lookout down said track, and to have seen the plaintiff in time to have stopped its car and avoided the injury."

The defendant denied the allegations of negligence and recklessness, and set up as a defense "that on the date alleged the plaintiff herein walked or crawled out on defendant's track near its father's residence, and being a child of only two or three years of age, it assumed a position where it could not be seen until defendant's car was almost upon it, whereby it received some injuries, but defendant does not know the nature or extent of said injuries." The defendant also set up as a defense the contributory negligence of the plaintiff and his parents, but subsequently withdrew said defense. The defendant's attorneys presented the following request, which was refused: "I charge you there is no evidence which will justify you in finding any verdict whatever for punitive damages, and, as to this, I direct you to find for defendant." The jury rendered a verdict in favor of the plaintiff, whereupon the defendant made a motion for a new trial, which was refused, and it afterwards appealed.

The first question presented by the exceptions which will be considered, is whether there was error on the part of his honor, the presiding judge, in failing to define punitive damages, or to instruct the jury as to the grounds upon which they could be given. His honor, the presiding judge, after defining actual or compensatory damages, charged the jury as follows: "Then there is another kind of damages, what is known as 'vindictive' or 'punitive' or 'exemplary' damages; that is, an amount in addition to actual damages, given by way of punishment against the wrongdoer, as a lesson to him and others doing likewise. These kind of damages are called 'vindictive,' 'punitive,' or 'exemplary' damages. You have heard it sometimes alluded to as 'smart money.' Now, in this case, the plaintiff not only...