Bridger v. Asheville & S.R. Co.
| Decision Date | 01 November 1887 |
| Citation | 3 S.E. 860,27 S.C. 456 |
| Parties | BRIDGER v. ASHEVILLE & S. R. Co. |
| Court | South Carolina Supreme Court |
Appeal from common pleas, circuit court of Spartansburg county.
SIMPSON C.J.
In this action the plaintiff sought to recover damages for injuries inflicted upon his son, a boy of tender years, by negligence of the defendant corporation, as alleged. The injury complained of was done in North Carolina, county of ___, at a turn-table of defendant. The defense (1) denied the negligence, and (2) relied on contributory negligence on the part of the child. The verdict was for the defendant, and the plaintiff has appealed upon 30 exceptions.
These exceptions, or at least so many of them as raise questions for our consideration, may be grouped under four heads, as follows: (1) Those that complain of error in the circuit judge's ruling upon the competency of certain testimony offered, embracing exceptions from 1 to 13, inclusive; (2) those that complain that his honor refused to charge without qualification certain requests of plaintiff, embracing exceptions 17-21; (3) those complaining of his honor's charge, and refusal to charge, in reference to the application of the law of North Carolina in a case of this kind, exceptions 22, 23, and 26; and (4) those complaining of his honor's charge that the age and intelligence of the boy were the tests of his capacity to commit contributory negligence, excluding questions of prudence, childish propensities, and impulses.
Under the first group we find the first allegation of error to be that his honor allowed one Dr. Allen to testify "that he thought the boy did not act prudently in going on the turn-table." In turning to the brief, fol. 21, it will be seen that his honor excluded this testimony. Upon its being offered, the plaintiff objected, and, after discussion the objection was sustained.
The second allegation is that his honor erroneously excluded the testimony of one Crossby as to the judgment and discretion of the boy, especially as to danger. His honor excluded this testimony upon the ground that the only pertinent inquiry upon this subject was as to the capacity and intelligence of the boy, his capacity to know and understand the danger, and not as to his prudence or recklessness in encountering it. We think his honor was right in his ruling here, for reasons to be given under the discussion of the fourth and last group of exceptions, which involve substantialy the same principle.
The third allegation of error is the same, in substance as the second.
The fourth complains that his honor excluded the testimony of Mrs. McConnell of former accidents upon the turn-table. This testimony was excluded, unless knowledge of said accidents was first brought home to the defendant, which was not done. One important rule of evidence is that testimony, to be competent, must be pertinent to the issue. The issue here was negligence. We do not see how former accidents, happening at this turntable, could be pertinent to said issue, in the absence of all knowledge thereof by the defendant.
The fifth objects to the exclusion of Charles C. Haskell's testimony as to the monthly earnings of the plaintiff. The plaintiff, at the time his son was injured, was in the employment of the Henry Hill Publishing Company, as agent for the sale of books, and the testimony of Haskell was intended to show how much he earned monthly at this business; the plaintiff claiming that he should recover from the defendant the value of his son's services, the value of his own services as a nurse to his son, and his monthly earnings as agent of the publishing company, which he alleged that he lost in consequence of being compelled to nurse and attend to his son while injured, or at least the difference between what he could have earned and the amount of $600, which it seems he paid some one to attend to his agency. This latter item his honor ruled out, and therefore excluded the testimony of Haskell upon this point; saying, however, "that if the plaintiff could recover for his loss of time in his agency it could not be speculative and uncertain wages, but must be contract wages," of which there was no evidence in the case. We think the general rule in cases of this kind is that of master and servant, which would include necessary expenses of medical attention, nursing, etc., and the survices of the injured party. His honor seemed inclined to extend this rule here, in view of the fact that it was proper that the father should become the nurse of his injured boy; and if contract monthly wages had been lost by the father, under his honor's ruling they might have been proved; but speculative and altogether uncertain earnings he excluded. We think his honor was as liberal to the plaintiff as the law allowed.
The sixth is the same, in substance, as the fifth.
Seventh. There had been a previous action on account of this injury in behalf of the boy, the plaintiff here, his father, being his guardian ad litem, which resulted in a verdict of $5,000 for the plaintiff. The record in said case was offered here by the plaintiff; it was excluded, and this is the ground of the seventh allegation of error. The rule of evidence supra, which requires that the testimony offered in a case should be pertinent to the issue, we think excluded this record. It was res inter alios acta, and had no application or pertinency to the case in hand, and therefore that his honor's ruling was correct.
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