Dodd v. Spartanburg Ry., Gas & Electric Co.

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

78 S.E. 525

95 S.C. 9

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

Supreme Court of South Carolina

May 28, 1913

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 thought that the child was not in a place of danger. The error further being, as is respectfully submitted, that this was a charge upon the facts, contrary to the provisions of section 26, art. 5, of the Constitution, and instructed the jury, as matter of fact, what degree of care a motorman should exercise and what his duty was in case he saw a child of tender years on or near the track. The error further being that by this charge his honor placed upon the defendant the duty of exercising a high degree of care, whereas, it is respectfully submitted, a defendant under the circumstances supposed is only called upon to exercise reasonable care.

"(6) Because his honor erred in charging as follows: 'If the employé sees an infant of very tender years on its track, it is its duty to do what it should do, and if necessary, to stop. That does not mean when he sees an infant at some distance he must stop. He is obliged to commence at once to give warning, it may be by ringing the bell, or by putting on brakes to avoid injuring that child, and, if it is necessary, he must stop.' The error being, as is respectfully submitted, that his honor in so charging charged upon the facts contrary to the provisions of section 26, art. 5, of the Constitution, and instructed the jury as to what acts the motorman should have done under the supposed circumstances to prevent an injury, whereas, it is respectfully submitted that it was a question entirely for the jury to say whether or not any act or acts of the defendant or its motorman was a negligent act.

"(7) Because it is respectfully submitted that his honor erred in refusing to charge the defendant's fourth request, to wit: 'The evidence in this case does not warrant a verdict to be rendered against the defendant company for punitive damages.' The error being, as is respectfully submitted, that there was no evidence in the case...