Cobb v. Southern Public Utilities Co.

• Decision Date: 11 May 1936
• Docket Number: 14291.
• Parties: COBB v. SOUTHERN PUBLIC UTILITIES CO.
• Court: South Carolina Supreme Court

187 S.E. 363

181 S.C. 310

COBB v. SOUTHERN PUBLIC UTILITIES CO.

No. 14291.

Supreme Court of South Carolina

May 11, 1936

Appeal from Common Pleas Circuit Court of Greenville County; G Dewey Oxner, Judge.

Action by E. H. Cobb, as administrator of the estate of Florence Cobb, deceased, against the Southern Public Utilities Company. From a judgment on the verdict for the plaintiff and denial of a new trial, the defendant appeals.

Judgment affirmed.

W. G Sirrine, of Greenville, for appellant.

J Robert Martin, of Greenville, for respondent.

CARTER Justice.

The history of this case, E. H. Cobb, as administrator of the estate of Florence Cobb, deceased, plaintiff-respondent, against Southern Public Utilities Company, defendant-appellant, instituted in the court of common pleas for Greenville county, briefly stated, is as follows: On June 6, 1933, Florence Cobb was alleged to have received personal injuries by a truck backing across a certain sidewalk in the county of Greenville, this state. Two suits were filed on June 28, 1933, one by Florence Cobb for personal injuries suffered, the other by E. H. Cobb, her husband, for loss of services and consortium. The defendant filed an answer in each cause. These suits were put on Calendar 1 for trial and were awaiting trial on said calendar when the said Florence Cobb, on January 11, 1934, died. Thereafter, by consent of the interested parties, an appropriate order was issued by the court, signed by his honor, Judge G. B. Greene, under which the survival action involved in this suit was substituted for the personal injury action instituted by the said Florence Cobb, deceased, and the Lord Campbell action was substituted for the loss of services, consortium, etc., instituted by the said E. H. Cobb.

The record discloses that in his complaint the plaintiff alleged that on June 6, 1933, an agent of the defendant backed a truck from a driveway in the village of Sans Souci upon the sidewalk of the Buncombe road, striking the deceased, the said Florence Cobb, and causing her death. In the answer filed in the cause, the defendant, while admitting that the driver of the truck was the agent of the defendant, denied the material allegations of the complaint; and as a further defense the defendant denied that the truck in question struck the said Florence Cobb and alleged that her injury was caused by her tripping on the sidewalk. In the third defense interposed, the defendant alleged contributory negligence. The defendant also interposed a fourth defense and under this defense alleged that the death of Mrs. Cobb was caused from an incurable disease.

The two cases were tried together at the June, 1934, term before his honor Judge G. Dewey Oxner, and a jury. In the suit brought under Lord Campbell's Act (Code 1932, §§ 411, 412), the jury returned a verdict for the plaintiff for the sum of $500, but under the survival act (Code 1932, § 419) a verdict was rendered for the defendant. Thereafter, the judge set the verdict aside in the suit brought under the survival act, and upon a new trial being had in said cause before his honor, Judge Featherstone, and a jury, a verdict was rendered for the plaintiff in the sum of $3,000. It further appears from the record that his honor, Judge Featherstone, set aside the verdict for $3,000 in the suit under the survival act and ordered a new trial thereon, and the suit under the survival act was tried for the third time; this trial being held May 20, 1935, before his honor, Judge G. Dewey Oxner, and a jury. Under the third trial of this case a verdict was rendered for the plaintiff in the sum of $2,000. In this connection it is well to state that during the third trial of this suit, instituted under the survival act, the defendant made a motion for a mistrial of the case upon the ground that "certain evidence was alleged to be privileged and prejudicial." This motion being refused, the defendant also made a motion for direction of a verdict for the defendant, which motion the trial judge also overruled. After the rendering of the verdict for the plaintiff, the defendant also made a motion for a new trial. The motion for a new trial being refused, from the judgment entered on the verdict for the plaintiff, the defendant has duly appealed to this court.

In the appeal to this court appellant presents many exceptions under which errors of law are imputed to the trial judge, but in the brief filed with the court appellant states, in effect, that the following constitute the errors of law raised for the consideration of this court:

"Errors of law ascribed by exceptions are as follows: (1) Permitting Loucile Cobb to testify to declarations of deceased. (2) Permitting same witness to testify to declarations of Mack Johns. (3) Admitting in evidence notice of taking deposition, when no deposition was taken. (4) Permitting plaintiff's counsel to testify to a conversation with plaintiff in regard to taking the proposed deposition. (5) Failing to withdraw a juror and grant the motion for a new trial. (6) Refusing the motion for a directed verdict for the lack of sufficient evidence. (7) Permitting certain argument of plaintiff's counsel to the jury. (8) Charging incorrectly on proximate cause. (9) Charging incorrectly on concurrent cause. (10) Charging incorrectly on recovery for negligence not alleged in the complaint. (11) Charging that retention of the agent in employment may be considered as ratification of the 'acts complained of.' (12) Refusing the motion for a new trial."

For the purpose of a clearer understanding of the case involved, we call attention to some of the important allegations set forth in the plaintiff's complaint: In the operation of the defendant's business with the public, in the said county of Greenville, the defendant owns and operates, with its agents and servants, a truck used in conveying supplies and certain fixtures, as well as certain of its agents and servants, from place to place in the conduct and in the course of its business; and on the day in question, June 6, 1933, "while the plaintiff's deceased, Florence Cobb, was walking upon the west sidewalk of Buncombe Street, coming southward toward the center of the city, traveling a much frequented thoroughfare of the County for pedestrians as well as vehicles, the defendant through and by its agents and servants, from a narrow and private driveway, suddenly with great force and speed ran one of its trucks from private lot onto said sidewalk without notice or warning or proper protection and outlook, onto and against said Florence Cobb, striking her on the right hip and side, knocking her a great distance on to the street, fracturing ribs on left side, severely crushing and bruising side and chest, lacerating and cutting her head and face, causing her to undergo painful medical treatments, to suffer great pain of both body and mind, and incur great expense, and loss of services from date of injury up to her death."

It is the contention of the plaintiff, as set forth in the plaintiff's complaint, that the injuries to the said Florence Cobb resulted from and were caused by the negligent and reckless acts of the defendant, its agents and servants in charge of and operating its said motor vehicle at the time and place in question, and failing to give adequate warning to the said deceased, as well as the public also, in backing the said truck onto the much-traveled sidewalk of the said city, and in failing to keep a proper lookout for the said deceased, as well as other members of the public, in backing said truck without notice and without warning at a high and reckless rate of speed at the time and under the surrounding circumstances. It is the further contention, as set forth in the complaint, that the defendant and its agents in charge of the said truck and in handling and directing the same failed to station an agent on the sidewalk in question for the purpose of giving notice of the said truck backing upon the said sidewalk and for the purpose of protecting the plaintiff and other members of the public from getting injured at said place. We may state further that, in effect, the allegations of the complaint are that the death of the said deceased, Florence Cobb, and the injuries, pain, and suffering she endured prior to her death, were each and all caused by the aforesaid delicts and failure to perform the duties which the defendant, its agents and servants, were under obligation to perform at the time and place in question, resulting in the damage alleged by the plaintiff.

The grounds of defense, set forth in the defendant's answer, are stated above, and need not here be repeated.

The first question presented at the threshold of the case, though not in the order presented by appellant, is the question raised regarding the allegation of error imputed to the trial judge in refusing to direct a verdict on defendant's motion on the ground of lack of sufficient evidence to support a verdict, covered by the sixth exception and that portion of the twelfth exception bearing on the same question. It would serve no useful purpose to quote all of the testimony, or even the essential parts of the testimony, or enter into a discussion of the same herein, bearing on this question; but we deem it sufficient to state that a careful consideration of the testimony and the record in the case presented on the trial of the case convinces us that the trial judge committed no error in overruling the motion for a directed verdict. The exceptions raising this question are therefore overruled.

The first and second questions presented by the exceptions according to statement of appellant's counsel, set forth in the brief filed with this court, impute error to the trial judge in "permitting Loucile...