Graham v. Atlantic Coast Line R. Co.

• Decision Date: 09 May 1911
• Citation: 71 S.E. 235,89 S.C. 1
• Parties: GRAHAM v. ATLANTIC COAST LINE R. CO.
• Court: South Carolina Supreme Court

71 S.E. 235

89 S.C. 1

GRAHAM v. ATLANTIC COAST LINE R. CO.

Supreme Court of South Carolina

May 9, 1911

Appeal from Common Pleas Circuit Court of Florence County; Thos. S Sease, Judge.

Action by O. O. Graham against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Lucian W. McLemore, for appellant. J. W. Ragsdale, for respondent.

JONES C.J.

The complaint in this case was based on the allegation that, on November 5, 1909, in Florence county, at Coward's Station, on defendant's line, defendant, by its station agent, E. L. Smith, grossly insulted and abused plaintiff and maliciously assaulted him with a pistol, while he was lawfully upon defendant's premises, for the purpose of obtaining freight and paying the charge due thereon. Verdict and judgment were rendered in favor of plaintiff for $1,000.

Motion for a new trial was made on two grounds: (1) "That the verdict is so excessive as to show on its face that the jury were influenced by passion, or whim, or prejudice; (2) that the failure of defendant to have the benefit of the testimony of the witness S.C. Smith could not have been foreseen and guarded against, and without this testimony the defendant has not had a fair and impartial submission of its case to the jury." These grounds are renewed here by exceptions; all other exceptions being abandoned.

We cannot say that the verdict was the result of passion, whim or prejudice upon anything appearing in the record, or that there was abuse of discretion in refusing a new trial for excessive verdict. There was evidence tending to show that defendant's agent assaulted plaintiff with a deadly weapon, upon the station premises, while plaintiff was there dealing with the agent in reference to business within the scope of the agent's employment. The verdict may be regarded as large; but, not being without support in the evidence, this court cannot interfere. Bing v. Atlantic C. L. R. R. Co., 86 S.C. 529, 68 S.E. 645.

It may have been unfortunate for the defendant that it went to trial without the testimony of the witness Smith, but that affords no ground for relief in this court. There was not even a motion for continuance on the ground of the absence of the witness. There was certainly no abuse of discretion in refusing a new trial on this ground.

The judgment of the circuit court is affirmed.

GARY A. J., and WOODS and HYDRICK, JJ.,...