Gosa v. Southern Ry.

• Decision Date: 02 November 1903
• Citation: 45 S.E. 810,67 S.C. 347
• Parties: GOSA v. SOUTHERN RY.
• Court: South Carolina Supreme Court

45 S.E. 810

67 S.C. 347

GOSA v. SOUTHERN RY.

Supreme Court of South Carolina

November 2, 1903

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

Action by Fleeta Gosa against the Southern Railway. Judgment for plaintiff, and defendant appeals. Affirmed.

Woods J., dissenting.

C. P Sanders, for appellant. Evans & Finley, for appellee.

Statement of Facts.

GARY A. J.

This is an action for damages on account of injuries received by the plaintiff in a collision with an engine of defendant at a highway crossing. The material allegations of the complaint are as follows:

"(2) That on the 20th day of October, A. D. 1900 plaintiff, with her infant daughter, nine weeks old, was traveling on the public highway in said county and state in a wagon drawn by a mule, and that at or near Mt. Zion Church, in said county, the highway upon which plaintiff was traveling is crossed by defendant's railroad, and that while plaintiff was attempting to cross said railroad at said point upon the public highway, as she had a right to do, the defendant, without any notice whatever to plaintiff, caused its locomotive and tender on said tracks to approach said crossing at a reckless and unlawful high rate of speed, and before plaintiff could escape (with her infant baby) said locomotive struck the wagon in which plaintiff was seated, wrecking the same, and throwing plaintiff (with her infant in her arms) to the ground in so violent a manner as to (break the thigh bone of her said infant) and horribly bruising the plaintiff, wounding her physically and mentally, to her great damage in the sum of five thousand dollars.

(3) That said defendant company failed to sound the whistle or ring the bell upon its said locomotive before reaching said crossing, as required by the statutes in such cases made and provided, and willfully and wantonly and negligently, and in utter disregard of the rights of plaintiff, caused its locomotive to run into the wagon in which plaintiff (and her infant) were traveling upon the public highway aforesaid, thereby inflicting upon her (and her said infant) serious bodily injuries and mental suffering, to her great damage five thousand dollars.

(4) That said defendant company carelessly, negligently, wantonly, and willfully, and in utter disregard of the rights of plaintiff (and her infant in arms), failed to stop its said locomotive, after discovering the wagon in which plaintiff was traveling upon the public highway, in time to prevent the injury to plaintiff (and her infant), to her great damage in the sum of five thousand dollars."

The answer of the defendant denied generally the allegations of the complaint, and set up the defense of contributory negligence.

When the case was called for trial, the defendant duly moved to strike from the complaint, as being irrelevant and redundant, and as not constituting the cause of action against the defendant, the following words from paragraph 2: "break the thigh bone of her said infant," and from paragraph 3 the words in line three from the bottom of said paragraph "her said infant," and from paragraph 4 the words "and her infant in arms," and in third line from the bottom of paragraph 4 the words "and her infant." The court overruled defendant's motion to strike out the foregoing words from the complaint, holding that they were responsive to the issue of mental anguish and suffering. The jury rendered a verdict in favor of the plaintiff.

The following are the appellant's exceptions:

"(1) In refusing to strike from the complaint the following words: 'broke the thigh bone of her said infant,' and also, 'and her said infant,' and also, 'and her infant in arms,' and also, 'and her infant,' as being redundant and irrelevant, and not constituting a cause of action in favor of plaintiff against the defendant; and in ruling and holding that these words were responsive to the allegation of mental suffering, thereby holding: (a) That one person can recover damages for mental suffering caused by injuries inflicted upon another; (b) that these words were relevant, and were sufficient to constitute a cause of action in favor of plaintiff against the defendant in this action.

(2) In allowing the following questions to be asked the plaintiff, and in allowing her to answer the same, against the objection of the defendant, to wit: 'Q. Where was the baby when the accident happened? A. In my arms. Q. Who is dependent upon you for support? A. My baby. Q. Where you able to minister to the wants of your infant at that time? A. I was not. Q. What was the condition of your mind by reason of that fact? Was it agitated? A. A great deal. Q. I believe you stated that your infant had its thigh broken? A. Yes, sir. Q. By reason of that fact, state whether you suffered mental excitement or not. State your circumstances. What worried you? A. I can't state how I felt. It was an awful thing to think of my being on the railroad track and the engine coming. I don't see how I could have been saved, and I think of my infant and myself both being crushed by the engine. I can imagine myself mashed upon the track." D"DDDD'

"(3) Because his honor, in refusing to strike out the words referred to in first exception from the complaint, and in permitting the plaintiff to testify as to injuries inflicted upon her baby, and the effect this had upon her mind, erred in that he allowed the jury to consider and to assess damages for the mental suffering of the plaintiff on account of injuries caused another.

(4) In allowing the witness Charles Cannon, against the objection of the defendant, to testify that he heard the plaintiff, some time after the accident, complain, it being respectfully submitted that the complaints of the plaintiff made after the accident were not part of the res gestae, and, besides, was permitting the ex parte statements of the plaintiff to go to the jury, and to be considered by them.

(5) In allowing the witness Fred Solesby to give his opinion as to whether he would or would not have heard the bell ring or the whistle blow."

(6) (Withdrawn.)

(7) (Withdrawn.)

"(8) In not permitting the witness T. D. Haynes to testify to a conversation with W. L. Stone, who was driving the wagon, had immediately after the accident, and in not ruling and holding that any statement made by W. L. Stone at that time was competent as being a part of the res gestae, being made in the presence of the plaintiff. In not permitting the witness T. D. Haynes to testify to a conversation had between J. C. Stone, who had been previously examined as a witness for plaintiff, and the conductor, Mr. Giles; and in ruling and holding that such conversation would not be relevant or material; the error being that, as J. C. Stone had denied on his examination making statements to the conductor, Mr. Giles, on material matters, the foundation having been properly laid, it was competent for defendant to contradict this witness. In not permitting the following questions to be asked the witness T. D. Haynes, and in not allowing the said witness to answer the same: 'Q. You remember the fact that Mr. Giles had a conversation with the young man? On that occasion, did you hear Mr. Giles ask Mr. J. C. Stone if he heard the whistle blow?' It being respectfully submitted that any statement or conversation made by parties immediately after the accident and in the presence of the plaintiff were a part of the res gestae, and, if not, still it was error to refuse to allow the witness J. C. Stone to be contradicted after the foundation had been properly laid."

(9) In not permitting the witness W. M. Giles to testify to the conversation had immediately after the accident with Mr. W. L. Stone, in the presence of the plaintiff; it being respectfully submitted that such statement was a part of the res gestae.

(10) After the following question had been asked the witness W. M. Giles with reference to J. C. Stone, 'Did you have a conversation with him?' and after he had answered it, in refusing to allow the following question to be asked this witness: 'Q. In that conversation, did you ask him if he heard the whistle blow?' It being respectfully submitted that the conversation between the witness and J. C. Stone, had immediately after the accident, in the presence of the plaintiff, was a part of the res gestae; but, if not, still the defendant had a right to contradict the witness J. C. Stone as to matters for which the foundation had been properly laid, and it was error in refusing to allow him to do so.

(11) In not allowing the witness Broad Williams to be asked these questions, and in refusing to allow him to answer the same: 'Q. State whether or not it takes a woman of health to run seven looms and manage them. I will ask you what kind of a woman as to strength does it take to run seven looms?' It being respectfully submitted that such questions were responsive to the testimony of plaintiff, tending to show that she was in ill health, weak, and frail, and it was error to refuse to allow the defendant to prove and examine the witness as to these facts.

(12) In allowing the witness Alma Dobbins to be asked the following questions, against the objection of defendant, and in permitting her to answer the same: 'Q. When girls do not do their work, they are pretty apt to be discharged, are they not? Now, if a girl does not do her work, is continually complaining and getting out, is it not likely she would be discharged?' And in ruling that such questions were in reply. It being respectfully submitted that the testimony was not in reply to any testimony brought out by defendant, and, in addition, that this testimony was irrelevant to any of the issues raised in this case.

(13) In allowing the following questions to be asked J. C. Stone, and in

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