Kelly v. Columbia Ry., Gas & Elec. Co.

• Decision Date: 01 March 1915
• Docket Number: 9013.
• Citation: Kelly v. Columbia Ry., Gas & Elec. Co., 84 S.E. 423, 100 S.C. 113 (S.C. 1915)
• Parties: KELLY v. COLUMBIA RY., GAS & ELECTRIC CO.
• Court: South Carolina Supreme Court

84 S.E. 423

100 S.C. 113

KELLY v. COLUMBIA RY., GAS & ELECTRIC CO.

No. 9013.

Supreme Court of South Carolina

March 1, 1915

Appeal from Common Pleas Circuit Court of Richland County; Geo. E Prince, Judge.

Action by Maggie E. Kelly, as administratrix of the estate of Robert L. Kelly, deceased, against the Columbia Railway, Gas & Electric Company. Judgment for plaintiff, and defendant appeals. Reversed, and new trial granted.

Elliott & Herbert, of Columbia, for appellant.

Spigner Cobb & Verner, of Columbia, for respondent.

WATTS J.

This was an action by the plaintiff against the defendant for $25,000 damages, actual and punitive, for the alleged wanton, reckless, negligent, and wrongful killing of her son, and, after issue joined, the cause was tried before his honor, Judge Prince, and a jury, at the March term of the court for Richland county, and resulted in a verdict for the plaintiff in the sum of $7,000. The defendant appeals and asks reversal upon nine exceptions.

The sixth exception is:

In charging the jury that, if the defendant operated its car over a switch at a greater rate of speed than four miles an hour, it was guilty of negligence per se. The error being that such a charge was an instruction on the facts, since it took from the jury the issue of whether or not such a rate of speed over a switch was negligence, and it instructed them that a breach of the company's rules by the servants of the company is negligence per se.

This exception must be sustained. His honor, in the settlement of the case for appeal, establishes the fact that he did so charge. In justice to his honor he was under the impression that the city ordinance of the city of Columbia prohibited the running of cars at a greater rate of speed than four miles an hour, whereas it was a rule of the company. Mr Verner called his attention to the mistake, and no doubt his honor intended and would have corrected his mistake, but his mind evidently was diverted at this time.

His honor would have been correct in his statement as to its being negligence per se had the ordinance of the city been violated. Dyson v. Railway, 83 S.C. 354, 65 S.E. 344; Lindler v. Railway, 84 S.C. 536, 66 S.E. 995; Whaley v. Ostendorff, 90 S.C. 282, 73 S.E. 186. But inasmuch as it was only a rule of the company, it was competent evidence to go to the Jury as evidence of negligence and to be considered by them for what it was worth.

In the...