GARY
A. J.
The
facts of this case are thus succinctly set forth in the
preliminary statement prefacing the argument of the
appellant's attorneys, and admitted to be correct by the
respondent's attorneys, to wit: "Action for damages
$1,999.99, instituted in the court of common pleas for
Greenville county September 29, 1899, by Robert Mason, as
administrator of Clara Belle Mason
deceased, for alleged negligent killing of intestate by
defendant, Southern Railway Company, near South Tiger
trestle, in Spartanburg county, on Atlanta & Charlotte
AirLine Railway, August 21, 1898. The intestate was a child
sixteen months old, and was killed on the track, about 70
yards from a neighborhood crossing, near the house of her
father, the plaintiff in this suit. Tried before Judge Gary
and a jury at Greenville November 22, 1899. Verdict for
plaintiff, $1,999.99. The plaintiff alleges that on the day
named the child crawled, unobserved, from the plaintiff's
house, which is near the track and in full view, and got upon
the track, the mother at the time having no servants about
the place, and being herself engaged in domestic duties; that
the plaintiff was away from home at the time; that, about a
mile from the point of collision, defendant's track
crosses a public highway, and the mother was accustomed to
watch upon the track for her children when the signals for
that crossing were given; that upon the occasion in question
the defendant failed to give the signals, and, if the signals
were given, the mother did not hear them; that, while the
child was seated upon the track, one of the defendant's
trains, which was behind time, and run at an unusually rapid
speed, recklessly and with grossest negligence ran over the
child and killed it; that at the time the child was seated on
the track at a point where a neighborhood road or
'traveled place' crosses said track, and the required
signals were not given; that the agents of the defendant knew
the location of the plaintiff's house, and for almost a
mile in the direction from which the train approached the
track was straight; that the engineer and fireman saw the child upon the track in ample time to have
stopped the train before striking it, and, if they did not
actually see and recognize it, they could, by the exercise of
ordinary care in keeping a lookout, have seen and recognized
it, and stopped the train in time to avoid striking it. The
specific acts of negligence recapitulated in the complaint
are stated to be (1) in not stopping the train, after having
observed the child, in time to avoid the collision; (2) after
first seeing the object, in not keeping a strict watch upon
it, by which they would have recognized it as a human being
in time; (3) in not keeping a proper lookout along this
stretch of track, which ordinary care and a proper regard for
life (human and animal) demanded, as well as the law of the
land, which would have enabled the fireman or engineer to
have seen the child in time. The remaining allegations of the
complaint are formal, referring to the incorporation of
defendant, the heirs at law of the intestate, the appointment
of the plaintiff as administrator, and the amount of damages.
The answer of the defendant admits its corporate existence,
that the child was killed by its train, and denies the other
allegations of the complaint. It alleges that the child was a
trespasser upon the track at a place where she had no legal
right to be, and where the servants of the company had no
reason to suppose she would be; that as soon as she was
discovered they did all in their power to avoid the accident;
that the defendant owed no duty to the child, save to
exercise ordinary care to avoid injuring it after discovery;
that it was impossible for the engineer to have seen the
child in time to avoid striking it, as the child crawled upon
the track on the left side of the engine, when the train was
not more than 150 feet away, and too close for the engineer
to avoid the collision. The defendant also pleads the
contributory negligence of the parents." The appellant
has argued the exceptions under the heads of
"Evidence," "Motion for Nonsuit,"
"Burden of Proof," and "Judge's
Charge."
Subdivision "a" of the first exception
assigned error as follows: "(a) The presiding judge
erred in admitting evidence to the effect that the defendant
failed to ring the bell or blow the whistle for the Burnett
crossing, a mile from the scene of accident, for the reason
that said testimony was irrelevant to the issue. This
exception applies to the testimony of Robert Mason, T. J.
Burnett, Ida Mason, Henry Pinson, and William Smith upon this
point, and the ruling of the presiding judge to this effect:
'I think the failure to blow the whistle or ring the bell
is, according to law, evidence of negligence."' The
complaint alleges gross negligence and recklessness on the
part of the defendant in running its train at the time the
accident occurred, and the answer sets up the defense of
contributory negligence on the part of the infant's
parents. The complaint also alleges that the highway crosses
the defendant's track about a mile from the place where
the collision took place, and that when the statutory signals
were given when approaching said crossing the mother of the
child was accustomed to look out upon defendant's track
to see if any of the children were in danger; that the
defendant failed to give the statutory signals (at least, she
did not hear them) on that occasion. Under these
circumstances, the circuit judge properly allowed the jury to
consider this testimony in determining the proximate cause of
the injury. Mack v. Railroad Co., 52 S.C. 323, 29
S.E. 905, 40 L. R. A. 679.
Subdivision
"b" alleges error as follows: "(b) The
presiding judge erred in refusing to allow the witness J. D.
Pettus to answer the question: ' If it had been one of
your own children on that track at the time, could you have
done anything to prevent striking it?'--such question
being competent and relevant to show that degree of care
exercised by the engineer after he discovered the child
crawling upon the track." This question merely called
forth an expression
of opinion, and, even if it could be regarded as erroneous,
it was harmless.
Subdivision
"c" is as follows: "(c) The presiding judge
erred in refusing to allow the defendant to
cross-examine the witness Ed. James, who was put up by
plaintiff." When a witness is sworn, he becomes subject
to examination in chief and to cross-examination. The right
of cross-examination is not destroyed by the failure to
examine in chief. This error was, however, cured when the
defendant's attorney thereafter was permitted to
cross-examine the witness.
Subdivision
"d" is as follows: "(d) The presiding judge
erred in overruling defendant's objection to, and
allowing the witness Ed. James to answer, the question:
'Did Mr. Pettus say, down there at the track, that he
thought that it was a dog or a chicken until he got too
close? Answer. Yes, sir; he did,'--upon the ground that
the declaration was not a part of the res gestæ and was
irrelevant to the issue." When Pettus was on the stand
he was asked if he did not say to Mason, the father of the
child, when the train backed to the place where the collision
took place, at the time Mason climbed up in the cab, that he
thought it was a dog or a chicken on the track, and that he
did not have time to stop then. He answered. "No."
The foundation was properly laid for contradicting the
witness, and the testimony was at least admissible for that
purpose.
Subdivisions
"e," "f," and "g," are as
follows: "(e) The presiding judge erred in overruling
defendant's objection to, and allowing the witness
Hampton Mason to answer, the question: 'Did you hear the
fireman say to the engineer, "If you had paid attention
to me when I told you that there was something on the track,
maybe this thing would not have happened"? Yes,
sir,'--for the same reason as in 'd,' supra. (f)
The presiding judge erred in overruling defendant's
objection to, and allowing the witness Robert Mason to
answer, the question: 'And did he [engineer] say, "I
thought it was a dog or a chicken until I got up close to
it"? Yes, sir,'--for the same reason as in
'd,' supra. (g) The presiding judge erred in
overruling defendant's objection to, and allowing the
witness Ida Mason to answer, the question,
'Did you hear the engineer say to your husband that he
thought that the child was a dog or a chicken until he got
too close to it'? for the same reason as in 'd,'
supra." They are disposed of by what was said in
considering subdivision "d."
The
second exception is as follows: "The presiding judge
erred in overruling defendant's objection for a nonsuit
(a) There was an entire failure of proof of negligence on the
part of the defendant. (b) The evidence shows that the child
was upon the track at a point where it had no legal right to
be, and where the defendant is not presumed to have supposed
that it would be. It was incumbent upon plaintiff to offer
testimony tending to show that the child was discovered by
defendant's agents in time to avoid striking it, and that
they negligently failed, after such discovery, to avoid the
disaster. There is a total failure of the testimony upon both
of these points. (c) It was error to hold that a child could
not be a...
