Dodd v. Spartanburg Ry

• Decision Date: 28 May 1913
• Citation: 95 S.C. 9,78 S.E. 525
• Court: South Carolina Supreme Court
• Parties: DODD. v. SPARTANBURG RY., GAS & ELECTRIC CO.

(95 S.C. 9)
78 S.E. 525

DODD.
v.
SPARTANBURG RY., GAS & ELECTRIC CO.

Supreme Court of South Carolina.

May 28, 1913.

1. Evidence (§ 474 1/2^*)—Opinion Evidence— Admissibility.

In an action by one run down by a street car at a public crossing which was adjacent to the tracks of a steam railway, opinion evidence as to whether the gong announcing the approach of the street car could be heard when a freight train was passing along the railway tracks is admissible, for the surroundings could not be

[78 S.E. 526]

reproduced so as to afford the jury the same opportunity of forming a correct opinion as when viewed by the witness, and therefore such evidence was not an invasion of the province of the jury.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2220-2233; Dec. Dig. § 474 1/2.^2-*]

2. Appeal and Error (§ 1050*)—Review— Harmless Error.

A party cannot complain of the error in the admission of evidence, where similar evidence was admitted without objection by him.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1008, 1009, 4153-4157, 4.166; Dec. Dig. § 1050.*]

3. Negligence (§ 85*)—Contributory Negligence—Children.

A child under seven years of age cannot be guilty of contributory negligence.

[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 121-128; Dec. Dig. § 85.*]

4. Street Railroads (§ 115*) — Injury to Persons on Track — Damages — Punitive Damages.

Where servants of a street car company, in charge of a car, ran at a high rate of speed past a crossing before which they were required to stop, and which was used by school children, being at the intersection of three streets, punitive damages are properly allowed in an action by a child injured.

[Ed. Note.—For other cases, see Street Railroads, Dec. Dig. § 115.*]

Appeal from Common Pleas Circuit Court of Spartanburg County; Frank B. Gary, Judge.

Action by Willie Dodd, by her guardian ad litem E. F. Dodd, against the Spartanburg Railway, Gas & Electric Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The exceptions were as follows:

"(1) In allowing the witness W. C. Gash, against the objection of the defendant, to testify as to a matter of opinion and to answer the following question: 'Q. With a freight train going right down by there, and those children standing there looking at the freight train, do you think they could have heard the gong?' The error being, as it is respectfully submitted, that this was altogether a matter of opinion, and allowed the witness to give his opinion on one of the material points in the case.

"(2) In refusing to grant the motion of the defendant for a nonsuit as to the cause of action for punitive damages. The error being, as is respectfully submitted, that there was no evidence tending to prove any willfulness or wantonness or such recklessness as would warrant a jury in concluding that the defendant was willful or wanton.

"(3) In refusing the defendant's motion to direct a verdict to be rendered in favor of the defendant as to the cause of action for punitive damages. The error being, as is respectfully submitted, that there was no evidence tending to prove any willfulness or wantonness or such recklessness on the part of the defendant as warrants the submission of this issue to the jury.

"(4) In charging and instructing the jury in reference to the cause of action for punitive damages as follows: 'I charge you, furthermore, in determining whether or not this defendant was willful or reckless or guilty of such negligence as amounted to that, it is your duty to consider what the circumstances were. As "negligence" is a relative term, what would be negligence under one set of circumstances might not be under another.' The error being, as it is respectfully submitted, that by this charge his honor in effect instructed the jury that they could render a verdict against the defendant for punitive damages, even though the defendant might have been guilty only of negligence. Further, that by this charge his honor in effect instructed the jury that the same act might be willful, or wanton, or negligent. Whereas, it is respectfully submitted, the same act cannot be both willful or wanton or at the same time negligent.

"(5) In charging and instructing the jury at the request of the plaintiff as follows: 'A driver or motorman, when operating his car on a street where he has reason to expect the presence of children, must exercise a high degree of watchfulness, and if he sees, or by the exercise of ordinary care could see, a child of tender years on or near the track, he is not entitled to act on the assumption that such child will get off or stay off the track, but must at once use all reasonable efforts to avoid injuring him, and, if necessary, use all reasonable means to stop it in time to avoid injury, and, if he fails to do so, the company is liable for resulting damages.' The error being, as it is respectfully submitted, that in so charging his honor eliminated from consideration of the jury the question of the capacity and intelligence of the child, and also eliminated the question as to whether or not a reasonable man would have thought that the child was not near enough to the track to be in danger, and allowed the jury to find a verdict against the defendant, even though the evidence might disclose that the child was of sufficient capacity and intelligence to understand and appreciate danger, and even though a reasonable man might have...