Bridger v. Asheville & S.R. Co.
| Decision Date | 22 April 1886 |
| Citation | 25 S.C. 24 |
| Parties | BRIDGER v. ASHEVILLE AND SPARTANBURG RAILROAD COMPANY. |
| Court | South Carolina Supreme Court |
1. Testimony taken by commission without objection may be objected to at the trial on the reading of the interrogatories.
2. A witness personally acquainted with the character and location of a turn-table may testify that it was dangerous for children to ride thereon.
3. Where there is an absence of all testimony as to any or all material points embraced in the issues between the parties, a non-suit should be ordered. If there is any pertinent testimony, whether weak or strong, the force and effect of which has to be weighed, the case must go to the jury.
4. On motion for non-suit, the judge can only determine whether there is any pertinent testimony; on motion for new trial, he may determine its sufficiency. Hence, a judge may grant a new trial to defendant where the same testimony would not permit a non-suit.
5. There being testimony that the turn-table was dangerous, was located in an exposed place, easily accessible, unfenced unguarded, and unlocked; that the plaintiff was of an age when he could not understand that the turn-table was dangerous, and that he had no right to intermeddle with it— there was some pertinent testimony upon the issue of negligence, and a non-suit was properly refused.
6. The judge declined to charge that " the degree of care required of defendant is only such as is exercised by well regulated railroads over their turn-tables, and that if defendant exercised such care in this case, there was no negligence" — saying that other railroads' negligence could not excuse negligence by this defendant, and that it was for the jury to say whether there was negligence here. In this there was no error. What well regulated railroads do may be very different from what prudence would require them to do.
7. The judge should charge the jury that negligence is the absence of ordinary care, but the jury must determine whether the facts proved amount to negligence.
8. The judge properly left it to the jury to say whether the plaintiff was of sufficient age, intelligence, and discretion to be brought within the rule of contributory negligence.
9. An infant might know that it was wrong and improper for him to play on a turn-table, and yet not know that it was dangerous.
10. Where the incapacity from age of an infant plaintiff of eleven years is alleged in the complaint and denied in the answer, the judge could not charge, as matter of law, that plaintiff was sui juris and subject to the general law applicable to persons of acknowledged capacity.
11. The law of North Carolina, applicable to an injury like the one here received, was not proved by the mere citation of a North Carolina decision declaring the law. The volume of North Carolina Statutes, or of North Carolina Reports, should have been offered in evidence.
12. The charge in this case was not on the facts.
Before COTHRAN, J., Spartanburg, March, 1885.
The case is sufficiently stated in the opinion of this court.
Messrs. Duncan & Sanders , for appellant.
Mr. J. S. R. Thomson , contra.
The plaintiff, a youth under twelve years of age, while playing with other boys on the turntable of the defendant, located in Hendersonville, North Carolina, was badly injured, and he brought the action below through his guardian ad litem , in Spartanburg County, for damages, alleging negligence in the defendant, because said turn-table, being located in an open common near the highway, where the boys of the village were accustomed to play, & c., was yet not fenced or guarded, or locked, or secured, when not in use, but was negligently left exposed and accessible to children, who, not knowing the danger, made use of it as a means of amusement.
The jury rendered a verdict of $5,000 in favor of the plaintiff, and judgment being entered the defendant appealed. The appeal involves, 1st, a question as to the admissibility of certain testimony introduced by the plaintiff; 2d, whether a non-suit moved for by defendant should not have been granted; 3d, in not charging certain requests of the defendant; and, 4th, in charging certain propositions claimed by defendant to have been error.
First. As to the admissibility of the testimony objected to. It seems that certain witnesses were examined by commission, who were asked in said commission if a turn-table was dangerous, no objection being interposed in the commission to this question. These witnesses were examined also generally as to the location of this turn-table, & c., and they stated that it was dangerous for children to ride thereon. It is stated that this testimony was objected to at the trial. Objection overruled. We think the ruling of his honor was correct. The fact that no objection was interposed in the commission would not be sufficient to prevent objection at its opening on the ground that the testimony was already in the case without objection. McBride v. Ellis , 9 Rich. , 269. But besides this, which is satisfactory, the opinion of the witnesses, as given, was not an abstract opinion, founded upon the evidence of facts testified to by other witnesses, and given as the opinion of experts, but it was a statement based upon the witnesses' own knowledge of the character and location of this turn-table, and inferred from the facts to which the witnesses had testified in the course of their examination. That such testimony is generally received by the courts, see Ward v. Charleston City Railway Co. , 19 S.C. 526; Seibles v. Blackwell , 1 McMull. , 56, and the general doctrine discussed in Jones v. Fuller , 19 S.C. 66.
2d. Should the motion for non-suit have been granted? The law in reference to non-suits, as we have held in several cases, is this: Where there is an absence of all testimony as to any or to all material points embraced in the issue between the parties, a non-suit should be ordered. Carrier & Harris v. Dorrance , 19 S.C. 32; Redding v. R. R. Co. , 3 Id. , 9; Boykin v. Watts , 6 Id. , 83; Holley v. Walker , 7 Id. , 144. And this is, or may be, a preliminary question, raised by the defendant before he enters upon his defence, and addressed to the judge. The judge is charged with the law involved, and it is his duty to determine what are the material points embraced in the issue; in other words, what points the law of the case requires the plaintiff to prove in order to recover. And while he cannot say whether these points, one or all, have been proved or not on a motion of non-suit, and while he cannot base his order upon such conclusion, yet he can say whether the facts proved or the testimony offered touch the issue; and if in his judgment they fail to touch the issue, or any material point thereof, being as to said issue irrelevant and non-pertinent, it would be proper for him to grant a non-suit. His judgment in this respect may or not be erroneous, but still it is his province— not final, it is true, but nevertheless his province, subject to review on appeal. On the other hand, where there is testimony in the case directed and pertinent to the issues involved, and to all material points thereof, whether weak or strong, yet pertinent, the force and effect of which has to be weighed in determining whether said points have been proved, the case must go to the jury, because, under our system of jurisprudence, whether the testimony bearing upon the issue (the facts alleged on the one side and denied on the other) sustains said allegations is a matter with which the jury in a law case is exclusively invested.
It is sometimes urged that if the judge would grant a new trial in a case because a verdict in his opinion could not be sustained by the testimony, a non-suit would be proper before submitting it to the jury. The law, however, does not say so. The judge, as we have said, may determine in the first instance the absence of, or pertinency of, testimony, and may instruct the jury as to what is pertinent and what not, but he has no power to determine its sufficiency if it be pertinent, except after the jury has passed upon it; whereas upon a motion for a new trial he, too, may then judge of its force and effect, its sufficiency, and make orders accordingly. It will be observed that we are not discussing the wisdom of this doctrine. It may, or not, be well that judges have been denied the province of telling the jury that the evidence, although pertinent, has failed in sufficiency to sustain the allegations in the complaint, and of directing the verdict on the facts. Much might be said on either side, if this was an open question, and raised before a legislative assembly, but in our courts it cannot be raised, as the law here has long since settled it, denying to the judges such power.
The question here, then, on the motion of non-suit is, was any pertinent testimony introduced by the plaintiff upon the point involved, to wit, negligence of the defendant? What is negligence? Negligence has been defined, in short, to be " the absence of due care." This is the usual and general definition. More fully explained, it may be said that it " is the omission to do something which a reasonable and prudent man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do under all the circumstances surrounding and characterizing the particular case." There are several classes of cases in which the question of negligence, such as would make the party in default responsible, may arise, some of which are as follows: 1st. Where an injury is inflicted by one upon another by his direct act, or the direct act of his agent. 2d. Where the injury is...
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