McClintock v. Charleston & W.C. Ry. Co.

• Decision Date: 16 June 1909
• Citation: 64 S.E. 1009,83 S.C. 58
• Parties: McCLINTOCK v. CHARLESTON & W. C. RY. CO. (two cases).
• Court: South Carolina Supreme Court

64 S.E. 1009

83 S.C. 58

McCLINTOCK v. CHARLESTON & W. C. RY. CO. (two cases).

Supreme Court of South Carolina

June 16, 1909

Appeal from Common Pleas Circuit Court of Laurens County.

Action by W. A. McClintock against the Charleston & Western Carolina Railway Company and W. E. McClintock against the Charleston & Western Carolina Railway Company. From a judgment for defendant in each case, plaintiffs appeal. Affirmed.

Dial & Todd, for appellants.

S. J Simpson and Simpson, Cooper & Babb, for respondent.

GARY A. J.

These two actions are separate and distinct, but by consent were tried together. The plaintiffs seek to recover damages for the loss of their property alleged to have been caused by fire communicated from a locomotive engine of the defendant or originating within the limits of defendant's right of way. The fire is alleged to have occurred on the 21st of May 1906. The plaintiff W. A. McClintock, claiming to be the owner of the house which was destroyed, seeks to recover as his damages the value of the same, while the other plaintiff the occupant of the house at the time of the fire, sues to recover the loss of his household goods and other personal property. The jury rendered a verdict in each case in favor of the defendant, and the plaintiffs appealed.

The first exception is as follows: "Because his honor erred it is submitted, in not allowing the plaintiff W. A. McClintock to answer the following question: 'Do you know whether this house ever caught from a train before?' and in holding that it was irrelevant. His honor should have held that this question was competent, relevant, and material as bearing upon the issue of the cause of the fire, and as tending to prove the possibility and a consequent probability that some locomotive of the defendant caused the fire, and also as bearing upon the question of negligence, either in the operation, management, or construction of defendant's engines." This question arose as follows during the examination of a witness for the plaintiffs: "Q. Do you know whether this house ever caught from a train before? Mr. Babb: We object to what may have occurred before this. The Court: How is that relevant? Mr. Todd: In one of these cases under this section, evidence of previous fires from locomotive engines was received and was held competent. I don't recall the name of that case, but I think I can get it. I asked the witness if he knew of his own knowledge that this house had ever caught from passing locomotives previous to this time. The Court: I don't think that would be relevant." The ground upon which the testimony was held to be inadmissible was that it was irrelevant. It is a self-evident fact that it is within the range of possibility for sparks from an engine to set on fire a house near the track. We must assume that jurors are men of common sense, and conversant with the ordinary and well-known laws of nature. So that, even conceding that the testimony was admissible, it has not been made to appear that its rejection was prejudicial to the rights of the appellant, especially since the testimony shows that this fact was not the main issue in the controversy. In so far as the exception raises the question of the relevancy of the testimony upon the issue...