Hull v. Seabd. Air Line Ry

Decision Date09 March 1907
Citation57 S.E. 28,76 S.C. 278
PartiesHULL v. SEABOARD AIR LINE RY.
CourtSouth Carolina Supreme Court

1. Witnesses—Competency—Juror in Previous Case—Examination op Premises.

In an action against a railroad company for wrongful death, one who, as juror in another case against the same defendant for the wrongful death of another in the same catastrophe, examined the trestle which fell, in charge of the court, may testify as to the condition of the timber of the trestle at the time of the examination.

2. Carriers —Injury to Passenger—Willfulness.

In an action for injuries to a passenger, a refusal to charge that defendant cannot be guilty of wantonness or willfulness unless he has been guilty of misconduct or malice, is not prejudicial, where the court charged that it takes more than gross negligence to show willfulness or wantonness.

3. Constitutional Law — Due Process of Law.

Civ. Code 1902, § 2852, permitting exemplary damages in actions for negligent killing where the wrongful act was the result of recklessness, wantonness, or malice, does not deprive the carrier of its property without due process of law.

Appeal from Common Pleas Circuit Court of York County; Klugh, Judge.

Action by J. O. Hull, as administrator de bonis non of Anne S. McManus, against the Seaboard Air Line Railway. Judgment for plaintiff. Defendant appeals. Affirmed.

J. L. Glenn and W. B McCaw, for appellant

Wilson & Wilson, for respondent.

GARY, A. J. This is an action for damages, alleged to have been sustained as a result of the negligent, willful, reckless, and wanton conduct of the defendant, causing the death of plaintiff's intestate. The complaint alleges that Mrs. Anne E. McManus, being a passenger on defendant's train, came to her death in the following manner: That, when the train was passing over the trestle near Catawba river, the trestle gave way and the coach in which she was traveling, as well as the entire train, fell to the ground; that very shortly after the falling of said train, and before she could be extricated from the wreck, a freight train, running at a rapid rate of speed, ran into the wreck and killed her. It was alleged that the trestle was rotten and insecure, that the freight train was running too close behind the passenger train, that the crew of the freight train fail ed to keep a proper lookout, and that there was a failure to flag the freight train. The defendant denied the material allegations of the complaint. The jury rendered a verdict in favor of the plaintiff for $25,000, and the defendant appealed.

1. The first question that will be considered is whether his honor, the presiding judge, erred in permitting witnesses to testify as to the condition of the timber In the trestle where the accident occurred at the date of their visit, when these witnesses, who were members of the jury impaneled to try the case of Waverly Fairman against the defendant, as a part of the duties imposed by the court on the jury in that case, visited the structure as a jury in charge of the court. The ruling of the presiding judge was as follows: "It may be that the testimony loses somewhat of its value by reason of the time between the occurrence of the act and the time the witness saw it; but It is perfectly competent for him to state what he saw, by his own examination of it, so far as that might throw light on the question at issue now. The mere fact that he was a sworn member of the jury would not change it It is perfectly competent for one of those jurors there, if he knows anything about this thing, to be called from the jury box, sworn as a witness, and give his testimony for what he knows about the case; and the mere fact that he made the examination while he was a sworn juror would not render his examination less accurate or less competent. The result of his examination is as competent in all other respects as if he made it as a private individual. It may go to the jury as having been an inspection made some months after the casualty. I think the testimony is perfectly competent." The reasons assigned by the presiding judge are satisfactory to this court, and his ruling is sustained by the case of State v. Varl, 35 S. C. 175, 14 S. E. 392.

2. The second assignment of error is that the presiding judge erred in refusing to charge the following request: "I charge you, as a matter of law, that it is the settled law of this state that it takes more than negligence, and also more than gross negligence, to make out a case of willfulness or wantonness. One cannot be said to be guilty of willfulness or wantonness unless he has been guilty of misconduct and malice, or of some act from which misconduct and malice ought to be inferred." The circuit judge charged the first sentence, but refused to charge the second. Each of the words, "wantonness, " "willfulness, " and "recklessness, " embodies the element of malice, either express or implied,...

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20 cases
  • Siesseger v. Puth
    • United States
    • United States State Supreme Court of Iowa
    • 27 Octubre 1931
    ...and the willful or malicious disposition to injure all involve something else than negligence.’ ” In Hull v. Seaboard Air Line Ry., 76 S. C. 278, 57 S. E. 28, 10 L. R. A. (N. S.) 1213, the court said: “Each of the words, ‘wantonness,’ ‘willfulness,’ and ‘recklessness,’ embodies the element ......
  • Siesseger v. Puth
    • United States
    • United States State Supreme Court of Iowa
    • 27 Octubre 1931
    ...of bad faith, and the willful or malicious disposition to injure all involve something else than negligence.'" In Hull v. Seaboard Air Line Ry., 76 S.C. 278, 57 S.E. 28 (S. Car.), the court "Each of the words, 'wantonness,' 'willfulness,' and 'recklessness,' embodies the element of malice, ......
  • Whitley v. Commissioner, Docket No. 12947-97.
    • United States
    • United States Tax Court
    • 15 Abril 1999
    ...Atlantic C. L. R. Co., 87 S.E.2d 830, 840 (S.C. 1955); Davenport v. Woodside Cotton Mills Co., supra at 743; Hull v. Seaboard Air Line Ry., 57 S.E. 28, 29 (S.C. 1907); Beaudrot v. Southern Ry., 48 S.E. 106, 107 (S.C. 1904); Griffin v. Southern Ry., 43 S.E. 445, 447 (S.C. 1903); Watts v. Sou......
  • Lee v. Lott
    • United States
    • United States Court of Appeals (Georgia)
    • 26 Octubre 1934
    ...... enunciated in White v. Seaboard Air Line Ry., 14. Ga.App. 139, 80 S.E. 667, that, "Where the laws of a. foreign state are pleaded as a ...Coughlin, 114 Conn. 585, 159 A. 492;. Anderson v. Colucci, 116 Conn. 67, 163 A. 610. In. Hull v. Seaboard Air Line Ry., 76 S.C. 278, 57 S.E. 28, 10 L.R.A. (N. S.) 1213, it is said: "Each of ......
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