Crawford v. Charleston-Isle of Palms Traction Co.

• Decision Date: 04 December 1923
• Docket Number: 11350.
• Citation: Crawford v. Charleston-Isle of Palms Traction Co., 126 S.C. 447, 120 S.E. 381 (S.C. 1923)
• Parties: CRAWFORD v. CHARLESTON-ISLE OF PALMS TRACTION CO.
• Court: South Carolina Supreme Court

120 S.E. 381

126 S.C. 447

CRAWFORD v. CHARLESTON-ISLE OF PALMS TRACTION CO.

No. 11350.

Supreme Court of South Carolina

December 4, 1923

Appeal from Common Pleas Circuit Court of Charleston County; H. F Rice, Judge.

Action by Samuel L. Crawford, Jr., by his guardian ad litem, against the Charleston-Isle of Palms Traction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Hagood Rivers & Young, of Charleston, for appellant.

Thos P. Stoney, J. D. E. Meyer, and A. R. McGowan, all of Charleston, for respondent.

MARION J.

Action for damages on account of personal injuries sustained by plaintiff in a collision with a street car operated by the defendant company in the town of Mount Pleasant. From a judgment for the plaintiff in the sum of $9,500, the defendant appeals.

Appellant's first contention (exceptions 1 to 6, inclusive) is that the trial court committed error of law in refusing defendant's motions for a nonsuit and for a directed verdict, based upon the grounds (1) that there was no evidence tending to establish actionable negligence on the part of the defendant; and (2) that the evidence was open to no other reasonable inference than the plaintiff was guilty of contributory negligence.

There was evidence tending to establish that the plaintiff, a lad 13 years of age, was struck in the daytime by a street car while standing on defendant's car track in one of the streets of Mt. Pleasant, at a point in plain view of the approaching motorman for a distance of several hundred feet; that the plaintiff was standing sideways to the approaching street car, facing the sidewalk, where there were some colored boys with "wagons," who had tried to fight him, and that he did not see the car; that the ordinance of the town limited the speed of cars at this point to 15 miles per hour, and required motormen to give "due notice" to foot passengers, to the end that collisions be avoided; that the car was running 25 to 30 miles per hour; that no signal of the car's approach was heard by the injured boy and by another witness, who was in position to hear such signal, if given; that when brakes were applied the car was within 10 feet of the boy; that the motorman wore heavy glasses and bore a bad reputation for recklessness and carelessness.

As a general rule, it is the duty of the motorman of a street car, upon seeing a pedestrian on the track or dangerously near to it, to give warning of the approach of the car by sounding a gong or bell. 25 R. C. L. 1243, § 107. The town ordinance reinforced that duty by legislative mandate, and in addition limited the speed of cars to 15 miles per hour. In that the evidence tended to establish a violation of the ordinance, there was evidence of conduct which constituted negligence per se. Dyson v. Railway, 83 S.C. 354, 65 S.E. 344; Lindler v. Railway, 84 S.C. 536, 66 S.E. 995; Whaley v. Ostendorff, 90 S.C. 282, 73 S.E. 186; Kelly v. Ry. G. & E. Co., 100 S.C. 113, 84 S.E. 423. If the other evidential facts were susceptible of an inference that such negligence was the proximate cause of the injury, then a case of actionable negligence was made out, and the issue was for the jury. Whaley v. Ostendorff, supra. That the facts in the case at bar were reasonably open to the inference that the failure to give adequate warning of the approach of the car, considered in connection with the excessive speed of operation, was the proximate cause of the injury, we think is too clear to require argument. The motions for nonsuit and for directed verdict could not, therefore, have been properly granted for failure of proof of actionable negligence.

Neither could the motions have been properly granted upon the ground that contributory negligence was established as a matter of law. Under the well-established rule in this state there is a prima facie presumption that an infant between the ages of 7 and 14 is incapable of committing contributory negligence. Tucker v. Buffalo Mills, 76 S.C. 539, 57 S.E. 626, 121 Am. St. Rep. 957; Goodwin v. Columbia Mills, 80 S.C. 349, 61 S.E. 390; Cumming v. Lawrence, 87 S.C. 457, 69 S.E. 1090, and cases therein cited; Dodd v. Railway Co., 95 S.C. 9, 78 S.E. 525. The burden of establishing the affirmative defense of contributory negligence, which involved a rebuttal of the presumption of the plaintiff's incapacity, rested upon the defendant. Apparently the only evidence relied upon to rebut the presumption of incapacity was the testimony of the infant plaintiff himself and his appearance and demeanor on the stand. Whether the presumption of incapacity was overcome, and, if so, whether under all the facts and circumstances in evidence the plaintiff was guilty of negligence, which was a contributing proximate cause of the injury, made an issue which was clearly for the jury; and the trial judge committed no error in so ruling.

Appellant's second point (exception 7) is directed to assignment of error in the refusal of the circuit judge to grant a new trial on the ground that the verdict was excessive. The moving ground was one addressed to the sound discretion of the trial judge, and the record affords no basis for attributing to him an abuse of that discretion. Southerland v. Davis (S. C.) 115 S.E. 768.

The third contention (exception 8) is that the circuit judge after charging that the burden was on the defendant to prove that the plaintiff, under the age of 14 years, "was capable of contributory negligence," erred in using...