Cain v. Atl. Coast Line R. Co

• Decision Date: 12 April 1906
• Citation: Cain v. Atl. Coast Line R. Co, 54 S.E. 244, 74 S.C. 89 (S.C. 1906)
• Parties: CAIN. v. ATLANTIC COAST LINE R. CO.
• Court: South Carolina Supreme Court

54 S.E. 244

74 S.C. 89

CAIN.

v.ATLANTIC COAST LINE R. CO.

Supreme Court of South Carolina.

April 12, 1906.

1. Witnesses — Competency —Transactions with Decedent.

In an action for injuries to a passenger, declarations of the conductor while taking up the tickets immediately before the wreck, and who was killed in the wreck, are a part of the resgestæ, and are not excluded by Code Civ. Proc. 1902. § 400. relating to evidence of transactions with a decedent.

2. Evidence — Personal Injuries — Money Paid to Plaintiff—Explanatory Facts.

In an action by a passenger for personal injuries, evidence that while he was in the hospital defendant paid him certain money authorizes evidence by plaintiff that he was unconscious while in the hospital, and how muchmoney he had when he went in, and how much he had when he came out, though no damages for loss of money was alleged in the declaration.

3. Same—Opinion Evidence.

In an action for injuries to a passenger by a railroad wreck, evidence of a person living in the vicinity of an embankment, who had never particularly noticed it until after it was washed out, as to its safety is inadmissible without proof of his knowledge as to the requisites of an embankment and the resisting power of materials.

4. Witnesses—Cross-Examination.

Where a passenger sues for injuries in a railroad wreck, on cross-examination of an employé injured in the same wreck, he may be asked how much the company had paid for his injuries to test his credibility.

5. Carriers—Care Required.

A railroad company in constructing its road-bed is bound to use the highest degree of skill and care to render it safe for passengers.

[Ed. Note.—For cases in point, see vol. 9, Cent. Dig. Carriers, § 1087.]

6. Trial—Nonsuit.

Where several grounds of negligence are alleged in an action by a passenger for personal injuries, failure to prove one of them is no ground for a nonsuit or for direction of verdict for defendant.

7. Appeal—Review—New Trial.

A refusal to grant a new trial on the ground that the evidence is insufficient to sustain the verdict cannot be reviewed on appeal.

[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3948.]

8. Same—Questions Presented.

Refusal of a motion for new trial on the ground that the verdict was a quotient, one cannot be reviewed where the record shows no evidence to support the objection.

[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 2947.]

Appeal from Common Pleas Circuit Court of Sumter County; Purdy, Judge.

Action by Alexander L. Cain against the Atlantic Coast Line Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.

P. A. Willcox and Mark Reynolds, for appellant.

Lee & Moise, for respondent.

POPE, C. J. The plaintiff by his complaint sought to recover from the defendant railway the sum of $1,999 for the injuries he alleged that he had received by a wreck of the defendant's passenger train on the morning of the 3d day of June, 1903, on which the plaintiff was a passenger. The defendant admitted that its railway train was wrecked on that day, but it alleged that said wreck occurred on a point on the track of the defendant which was perfectly safe for more than 35 years, and which track was displaced by an extraordinary fall of rain on the night of the 2d and 3d days of June, 1903, and was the act of God. The action came on for trial at the July, 1905, term of court of common pleas for Sumter county, before his honor, Judge Purdy, and a jury. The testimony of both sides occupied days in its presentation. Indeed the contest was one of the most stubborn and hotly contested character. Full argument was heard on both sides, and after a charge from the judge, the jury brought in a verdict in favor of the plaintiff for $570.83. The defendant moved for a new trial upon the minutes of the court. This motion was refused. Thereupon the defendant appealed upon nine grounds, which we will now consider in their order:

1. The first ground was as follows: "Because his honor erred in allowing the plaintiff Alexander L. Cain, while on the stand, to testify, over the objection of the defendant, as to a conversation which took place two years previous, between the conductor of the defendant's train, who was then dead, and the plaintiff, to wit: 'He says he must take up the tickets and see about the engineer; he, the engineer was running the train too fast.' The said testimony being an alleged conversation and declaration made by the dead conductor two years previous, and was incompetent under section 400 of the Code, and could not bind the defendant; and there was no way in which the defendant could prove the statement to be false as the conductor was dead." It seems from the testimony of this witness, A. L. Cain, who was not yet 21 years of age and who sued by his guardian ad litem, that while the conductor, who was afterwards killed in the same wreck, was taking up the ticket of this plaintiff, he heard the conductor say, "I must take up the tickets and see the engineer, who is running the train too fast." There was testimony that the rate of speed was considerable and the engineer did not take on other passengers, although he admitted he was signaled to do so. The train was an excursion. So the defendant objected to the testimony by the plaintiff on the ground that such testimony was a violation of section 400 of our Code of Civil Procedure of 1902, in that the conductor whose language was being stated by the witness was dead. It must be remembered always that section 399 of our Code provides that no person shall be excluded as a witness by reason of his interest in the event of the action. So that if a witness otherwise competent is to be excluded, it must be under this section 400. It is as follows: "A party to an action * * * in all courts of this state * * * may be examined as a witness in his own behalf * * * in the same manner and subject to the same rules of examination as any other witness: Provided, however, that no party to the action * * * shall be examined in regard to any transaction or communication between such witness and a person at the time of such examination deceased, insane or lunatic, as a witness against a party then prosecuting or defending the action as executor, administrator, heir at law, next of kin, assignee, legatee, devisee, or survivor of such deceased person, or as assignee or committee of such insane person or lunatic when such examination, or any judgment or determination in such action * * * can in any manner affect the interest of such witness or the interest previously owned or representedby him * * *." A careful examination of the provisions of this section 400 of the Code and a consideration of the testimony of this witness fails to show to us that the ruling of the circuit judge was erroneous. The many decisions of this court on this subject are full and explicit and need no further elaboration at our hands. See Norris v. Clinkscales, 47 S. C. 490, 491, 492, 493, 494, 25 S. E. 797. This exception is overruled.

2. We will next examine the second exception, which is as follows: "Because his honor erred in allowing the plaintiff, A. L. Cain, over the objection of the defendant, to testify as to show how much money he had when the wreck occurred, and as to how much cash he bad when he got out of the hospital; whereas, there was no loss of money alleged In his complaint and no suit for the recovery of the money lost, and said testimony was irrelevant." There was testimony offered to show that the plaintiff received the sum of $16 from an agent of the defendant. The plaintiff denied that he received such sum, and said that when he was discharged from the hospital where he had been placed by the defendant, he had no money. These facts being in dispute, the testimony was relevant. But apart from this, no possible injury could have resulted to the defendant, for the plaintiff offered to pay back this sum of $16 to the defendant and actually tendered the money to defendant. This exception is overruled.

3. We will now examine the third exception, which is as follows: "Because his honor erred in not allowing W. J. Rees, witness for the defendant, to state what his opinion was as to nature and safety of "an embankment 60 feet wide, built of clay and sand, 12 to 15 feet high, " when it was shown that Mr. Rees was a resident of that vicinity, and was well acquainted with the embankment In question, the dimensions and character of the embankment being in question; whereas, his honor should have allowed the defendant to have the advantage of his statement in answer to the question." It is true, opinions of witnesses are sometimes allowed in certain conditions—as to injuries to woman's character. Jones v. Fuller, 19 S. C. 66, 45 Am. Rep. 761; Ward v. Charleston City Railway Co., 19 S. C. 521, 45 Am. Rep. 794. But the rule is that opinions of witnesses, except an expert's, are not competent. So we think in the case at bar the evidence of the witness Rees as to his opinion was not competent. This exception is overruled.

4. The fourth exception is as follows: "Because his honor permitted, over the objection of the defendant, the plaintiff's counsel to question the engineer, G. A. Wilson; and allowed the witness to testify as to what amount of money the defendant had paid him for injuries sustained by him in the said wreck; whereas, the said testimony was wholly irrelevant to the issue then under investigation." This testimony was sought on the cross-examination of defendant's witness. Under the wise oversight of the presiding judge such cross-examination was perfectly competent. The fairness of the witness may thus be tested; his credibility, etc., may be tested in this way. This exception is overruled.

5. The next exception, the fifth, is as follows: "Because his honor, the presiding judge, erred in charging in modification the defendant's first request to charge that 'the railroad company in the construction...