Couch v. Charlotte, C. & A. R. Co.

• Decision Date: 22 April 1885
• Citation: 22 S.C. 557
• Parties: COUCH v. CHARLOTTE, COLUMBIA & AUGUSTA R. R. CO.
• Court: South Carolina Supreme Court

22 S.C. 557

COUCH v. CHARLOTTE, COLUMBIA & AUGUSTA R. R. CO.

Supreme Court of South Carolina.

April 22, 1885

1. A Circuit judge, having refused defendant's motion for non-suit, may afterwards, during the trial with the facts unchanged, order a non-suit of his own motion.

2. Where the judge, in his discretion, refuses to allow the plaintiff to introduce further testimony after closing, upon motion made both before and after an order of non-suit, he commits no error of law for which the verdict may be set aside.

3. In action by a laborer, against a railroad company, to recover damages for injuries received by reason of the negligence of a section master of the road, the position, duties, and powers of such section master having been proved, it was irrelevant and unnecessary to show what was the custom of other section masters in such matters.

4. Witnesses who know the position and character of an open water-way across a railroad track, are not therefore competent to state their opinion of the dangerous character of the place, and of the requirement of prudence that notice should be given to one pushing a handcar over it.

5. On the question of negligence, it is the right of the trial judge to determine whether there is any evidence to make a prima facie case, and, if not, he may grant a non-suit.

6. An employee assumes the risks of his employment; therefore a railroad company is not answerable in damages for the injuries received by one of its section hands, from falling into an open water-way, properly constructed, while pushing a push-car over his section of the road.

7. Nor for the failure of the section master to give to this laborer, working on the road under him, special notice of the approach of the pushcar to this water-way.

8. It seems that a section master is a representative of the company, to the extent to which he discharges the duties of his master, the company, and not a fellow-laborer with the hands working under his orders.

Before WITHERSPOON, J., Aiken, April, 1884.

This was an action, by Watson E. Couch, to recover ten thousand dollars damages for injuries alleged to have been received through the negligence of the defendant company. The opinion sufficiently states the case.

Messrs. Henderson Bros. , for appellant.

Messrs. J. H. Rion, Croft & Dunlap , contra.

OPINION

MR JUSTICE MCGOWAN.

This was an action brought by the plaintiff, an employee of " The Charlotte, Columbia & Augusta Railroad Company," to recover, from the said company, damages for a personal injury received by him in the discharge of his duty as a section hand on said railroad. He complained: " While pushing a hand-car up a grade for said company, and over the track of said railroad, the defendants carelessly negligently, and without any warning whatever, caused the plaintiff to fall into a ditch, or water-way, not covered, and which was negligently constructed, by the said company, across the road-bed, and carelessly and negligently omitted, while approaching said ditch or water-way, to give any signal or notice whatever to plaintiff, by reason whereof the plaintiff was unaware of the danger. That by reason of the negligence and carelessness of the defendants, and without any fault on the part of the plaintiff, he was precipitated into the ditch or water-way, and by the fall his leg was broken below the knee," & c. The defendant corporation put in a general denial, and pleaded: " That the injuries alleged to have been received by the plaintiff, were not caused by any negligence on the part of the defendant or its servants, but was owing to the negligence and fault of the plaintiff himself."

The case came on to be heard before Judge Witherspoon. There was much testimony as to the circumstances under which the plaintiff received the injuries complained of, which is in the " Brief," and of course cannot be re-stated here. During the progress of the trial, the plaintiff's attorney asked one of his witnesses whether it was " the custom of section masters on the road to turn off hands when they displeased them." The judge would not allow the question to be answered, and plaintiff excepted. He asked another witness, William Davis, after he had described minutely the water-way where the plaintiff was injured, " to give his opinion as to the danger of the place." The judge also refused to allow this question to be answered, and plaintiff excepted.

When the plaintiff announced that he had closed, the defendant's attorney moved for a non-suit, which the judge refused. The defendant offered no testimony, and, before going to the jury, the plaintiff asked permission to offer further testimony, which had only come to his knowledge, as alleged, during the argument for a non-suit. The judge declined to admit further testimony, and sent the case to the jury. Before the argument closed the court adjourned for the day, and the next morning the judge announced that, after looking through the authorities, he had changed his mind, and thought there ought to be a non-suit. The plaintiff then renewed his request for leave to offer further testimony, which was refused, and the judge granted the following order: " At the close of the plaintiff's evidence, a motion for a non-suit was made by the attorney for the defendant. After hearing argument in support of the motion, and in opposition thereto, the court decided to permit the case to go to the jury. There being no more evidence, after hearing most of the argument to the jury upon the merits of the case, as appears from the evidence, and the law applicable thereto, the court became convinced that the non-suit should have been granted, and, at this stage, arrested the case; and it is therefore ordered that the motion for non-suit be granted, and that the defendant have leave to enter up judgment of non-suit herein, and for the costs of this action."

From this order the plaintiff appeals to this court on various exceptions, which it will be necessary to take up seriatim , as the particular grounds upon which the non-suit was granted are not stated.

First . The plaintiff alleges that the judge committed error in granting the non-suit of his own motion after he had refused it when made by the defendant's counsel. There is nothing in the fact that the order was made without a motion to that effect being before the judge. McCall v. Cohen , 16 S.C. 448. Nor do we see that it was beyond the discretion of the judge during the trial of the cause, and while the facts were unchanged, to correct his own rulings and grant a non-suit which he had before refused. He could lawfully make such an order. Chichester & Co. v. Hastie , 9 S.C. 331.

Second . The plaintiff also alleges that the judge committed error in not allowing the plaintiff to introduce the testimony tendered by him, both after he had refused and after he had granted the non-suit. The plaintiff formally announced that his case was closed. After that the Circuit judge, in his discretion, sometimes in the interest of justice admits further testimony; but we do not understand that this is a right of the plaintiff which he may demand, but an indulgence extended in order that all the facts may be considered. When a Circuit judge in his discretion refuses such an application, we cannot say that in doing so he committed error of law, which would be sufficient to set aside the verdict.

Third . The plaintiff also excepts, that it was error not to allow the plaintiff, Couch, when a witness on the stand, to testify as to the custom of section masters, other than Satcher, on the road of the defendants in employing and discharging hands. It appeared that Satcher was the boss of Section No. 3 on defendants' road; that his position, as expressed by one of the witnesses, was as follows: " He was overseer: he hired and discharged, got tools, and ordered the hands what to do, and it was his duty to keep the track in good condition." If there was no other objection to the testimony, after this proof, it was irrelevant and unnecessary to show what was the custom of other section masters in the matter indicated.

Fourth . The plaintiff also complains that the judge erred in not allowing William Davis and other witnesses, after they had stated the condition of the water-way, or heard it described by others, to go on and give their opinion as to the dangerous character of the place, and that prudence required that notice should have been given to one situated as the plaintiff was. The general rule certainly is that the mere opinions of witnesses are not admissible. There are some exceptions to the rule for particular reasons, but we do not think that any of them cover this case. The subject matter was not of such character as to authorize the introduction of opinion from the necessity of the case. See 1 Greenl. Evid. , 514; Ward v. Charleston City R. R. Co. , 19 S.C. 525; Jones v. Fuller, Ibid , 66.

Fifth . The plaintiff finally excepts in general terms " that the Circuit judge erred in granting the non-suit." This certainly opens a very wide field, embracing all...