Lumpkin v. Mankin

Decision Date10 September 1926
Docket Number(No. 12064.)
Citation134 S.E. 503
PartiesLUMPKIN. v. MANKIN.
CourtSouth Carolina Supreme Court

134 S.E. 503

LUMPKIN.
v.
MANKIN.

(No. 12064.)

Supreme Court of South Carolina.

Sept. 10, 1926.


Appeal from Richland County Court; M. S. Whaley, Judge.

Action by Madison Lumpkin against Louisa Mankin. Judgment for plaintiff, and defendant appeals. Affirmed.

De Pass & De Pass, of Columbia, for appellant.

Cooper & Winter, of Columbia, for respondent.

BLEASE, J. Action between the plaintiff, a colored man, who owned a mule, and the defendant, a colored woman, who owned a Ford automobile. The mule and the automobile mixed up in Arthur town, on the Bluff road, in Richland county. One of the important issues was which got hurt the worst, the Ford or the mule. Plaintiff, on account of the conduct of the automobile and driver, claimed $500, actual and punitive damages, "either or both." The defendant denied plaintiff's claim, and demanded by counterclaim $500 damages, actual and punitive, on account of the conduct of the mule and the plaintiff.

The trial was before Judge Whaley, in the county court of Richland county, and resulted in a verdict in plaintiff's favor for $150 actual damages, and $100 punitive damages. The defendant was not satisfied with the result, and has asked this court to review the trial.

At the conclusion of the plaintiff's testimony, the defendant asked for a nonsuit, for the reason "that no acts of negligence were alleged in the complaint or proven by the testimony." This motion was refused, and such refusal is made the basis of the first exception.

The allegations of the complaint as to negligence were in the most general terms. But, if the defendant wished the acts of negligence specified, she should have made a motion that the plaintiff be required to make his complaint more definite and certain. Sutton v. Railway, 82 S. C. 345, 64 S. E. 401; Prescott v. Railway, 99 S. C. 422, 83 S. E. 781.

There was some evidence as to negligence on part of the defendant. Plaintiff testified that he was trying to get the mule out of the road; that he saw the car "about a half acre before it struck mule, " and the defendant did not try to stop the car, and made no effort to slow up, until after she had struck the mule, although one traveling in the road could have seen the mule "about a mile up the road." He also swore that the defendant told him that "she was just learning to drive car." One of plaintiff's witnesses testified that the defendant and the mule could both see each other some time before the collision. Another witness of plaintiff testified that the...

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