Bridger v. Asheville & Spartanburg R.R. Co.

CourtUnited States State Supreme Court of South Carolina
Citation25 S.C. 24
PartiesBRIDGER v. ASHEVILLE AND SPARTANBURG RAILROAD COMPANY.
Decision Date22 April 1886

25 S.C. 24

BRIDGER
v.
ASHEVILLE AND SPARTANBURG RAILROAD COMPANY.

Supreme Court of South Carolina.

Apr. 22, 1886.


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.

[25 S.C. 25]

The case is sufficiently stated in the opinion of this court.

Messrs. Duncan & Sanders, for appellant.

Mr. J. S. R. Thomson, contra.


The opinion of the court was delivered by

MR. CHIEF JUSTICE SIMPSON.

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

[25 S.C. 26]

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...

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