Miller v. Atlantic Coast Line R. Co.

• Decision Date: 02 April 1913
• Citation: 77 S.E. 1111,94 S.C. 388
• Parties: MILLER v. ATLANTIC COAST LINE R. CO. et al.
• Court: South Carolina Supreme Court

77 S.E. 1111

94 S.C. 388

MILLER v. ATLANTIC COAST LINE R. CO. et al.

Supreme Court of South Carolina

April 2, 1913

Rehearing Denied April 30, 1913.

Appeal from Common Pleas Circuit Court of Sumter County; Hayne F Rice, Judge.

"To be officially reported."

Action by James A. Miller against the Atlantic Coast Line Railroad Company and others. From a judgment for plaintiff, defendant named appeals. Affirmed.

See also, 90 S.C. 249, 73 S.E. 71.

The following are the exceptions of defendant:

"(1) His Honor erred, it is respectfully submitted, in allowing plaintiff, while his testimony was being taken, to introduce, over defendant's objection rule 853, whereas he should have excluded the said rule because it had no application to the case, the rule book showing that rule 853 had reference solely to freight conductors in charge of freight trains on the line of road and had no application to switching on yards; and his honor further erred, it is respectfully submitted, in allowing plaintiff, over defendant's objection to construe the rules, particularly rule 853; the evidence, objections. and rulings being as follows: 'Q. Look at that book and see whether or not that is the rule book for the Atlantic Coast Line; is that the rule book in force October 18, 1908? A. Yes sir. Q. Look under the head of freight conductors? A. Yes, sir. Q. Are you familiar with rule 853? A. Yes, sir. Q. Was that in force on October 18, 1908? A. Yes, sir. Q. Did that apply to all conductors? A. On leaving the side track; yes, sir. Q. We offer rule 853 in evidence. Mr McLemore: I object to the introduction of this rule on the ground that it has no application to this case in that the rule itself shows, with the others connected with it, that this rule referred solely to freight conductors in charge of freight trains on the line of road, and has no application to switching on yards. Mr. Best: I proved by this witness that this is the only rule, and that he was operating under this identical rule. Court: Go ahead and prove it. Was there any other rule governing the placing of cars on side tracks other than rule 853? Mr. McLemore: I object. The rule speaks for itself. There they are all in the book. Court: Repeat the question. Q. Was there any other rule, except rule 853, applying to the leaving of cars on side tracks? Court: Now, you are attempting to introduce rule 853? Mr. Best: Yes, sir. Court: Yes, sir; I think that is about right, whether or not-- A. There was no other rule. Q. Were you operating under rule 853 at the time? A. Yes, sir. Mr. McLemore: I object, of course. A. There was no other rule. Court: Let me see the book. I overrule the objection. Let it in. Q. Now, we again offer rule 853 on page 103, Atlantic Coast Line Rule Book, September 1, 1909. Marked Exhibit A.'

"(2) His honor erred, it is respectfully submitted, in sustaining the objection of plaintiff's counsel and in refusing to allow defendant's counsel to elicit plaintiff's answer to the question if he was willing to waive any right that he might have and permit Dr. Parker, referred to in the evidence, to testify in the cause, whereas he should have required or permitted plaintiff to answer such question so that defendant might have the benefit of the testimony of Dr. Parker if plaintiff had signified his consent for such testimony to be taken; the question, objection, and ruling of the court being as follows: 'Q. Are you willing to waive your rights, if you have such a right, to insist that that is a confidential matter-- Mr. Jennings: The attorneys are conducting his case. Mr. Best: That is unfair. He has counsel to conduct his case in a legal, orderly way; he has got to yield to the lawyers, under the protection of his lawyers; and we are fully able to protect his rights. Mr. McLemore: We admit Mr. Miller has a right to permit Dr. Parker to testify, or object to him testifying, on the ground of confidential relation, and I ask him if he is willing to waive that? Mr. Clifton: We object on the ground that he first has the right to consult his counsel as to whether or no he will waive that right. That is a matter upon which he is entitled to advice, not on the question of fact, but whether he has a right to confer with his counsel upon the question of his legal privileges, because that is a question of law as to whether it can be gone into. Court: I am going to rule that out. I don't think you can go into that question.'

"(3) His honor erred, It is respectfully submitted, in sustaining the objection of plaintiff's counsel and in refusing to allow defendant's counsel to elicit plaintiff's answer to the question if he was willing to submit to a physical examination by the physicians referred to in the evidence, where as his honor should have required or permitted plaintiff to answer such question, it being solely a question of a personal privilege of plaintiff which he might waive by submitting to such examination; the question, objection, and ruling of the court being as follows: 'Q. Are you willing to permit all or any of those doctors to examine you at this time? A. If my counsel are. Q. I am asking you if you are willing? A. I don't care whether they are or not. Mr. Clifton: That is the same question. It has been ruled out. Mr. Clifton: We object to the answer. He doesn't have to answer. Mr. Jennings: He doesn't have to say. Court: All right, I rule it out. I sustain the objection.'

"(4) His honor erred, it is respectfully submitted, in allowing the witness R. W. Bryant, over defendant's objection, to construe rule 853 by testifying that yard conductors worked under said rule on defendant's yard at Columbia, whereas his honor should have excluded such testimony, because (a) it was a matter of law for the court to construe the rules and to say what portion thereof, if any, referred to the duties of yard conductor; (b) it was incompetent for an employé to construe rules provided by the master, particularly by giving them a construction contrary to or inconsistent with the construction placed upon them by the master; and (c) the witness, as an engineer, was incompetent to testify concerning, or to construe rules governing, yard conductors or freight conductors.

"(5) His honor erred, it is respectfully submitted, in permitting plaintiff, over defendant's objection, while the witness John Suber was being examined, to introduce in evidence rule 853, it being submitted that such rule had no application to the switching of cars and the making up of trains on the yard, but had reference solely to the duties of freight conductors in charge of freight trains on the line of road; the evidence, objection, and ruling of the court being as follows: 'We desire to introduce specifically pages 102, 103, and 104 of the rule book of the Atlantic Coast Line. Mr. McLemore: Number of rules? Q. 842 to 853, inclusive. Mr. McLemore: We object to the introduction of these particular rules on the ground that none of them, not one of them, is applicable to this case, because 842 refers only to the duties of the yardmaster, and there is no allegation in the pleadings, and no evidence now before the court, which could possibly make that rule competent, which would have any bearing on that rule, and upon which that rule could have any bearing; and for the further reason that the rules which follow, 843 to 853, inclusive, upon inspection of the rules themselves, have reference only to freight conductors in charge of freight trains being operated over the line of road, and do not in any way have any reference to the operation of engines or the making up of trains in the yard, and for that reason they are inapplicable to this case, and will be misleading and consequently prejudicial and should be excluded. Mr. Best: I desire to introduce the rules; I don't care about introducing the other; introduce 853 under the head of freight conductors, rule 853. Court: You did that yesterday? Mr. Best: Yes, sir; I am not introducing the other-- Mr. McLemore: I would like to enlarge our objection just a little bit by making the further ground that this rule, under the McCreary Case, the whole book is not admissible, unless there is at least one rule in the book which is relevant to the case; if there is no relevant rule in the book, why, then, under the McCreary Case, the book cannot be introduced in evidence, and we take the position that there is no rule in the book which is relevant to the case. Court: Rule 853? Mr. Best: Yes, sir; rule 853. Shall I proceed? Court: Is that all at this time that you are introducing? Mr. Best: There is another rule which we will point out later. It is a general rule, and we don't remember the number right now. Court: You withdraw, then, the matter of introducing all from 842 to 853 at present? Mr. Best: Yes, sir; with your permission, we will withdraw that introduction and introduce No. 853. Court: All right.'

"(6) His honor erred, it is respectfully submitted, in allowing the witness P. P. Finn, over defendant's objection, to construe rule 853 by testifying that yard conductors worked under the said rule on defendant's yard at Columbia, whereas his honor should have excluded such testimony, because (a) it was a matter of law for the court to construe the rules and to say what portion thereof, if any, referred to the duties of yard conductor; (b) it was incompetent for an employé to construe rules provided by the master, particularly by giving them a construction contrary to or inconsistent with the construction placed upon them by the master; and (c) the witness, as an engineer was incompetent to testify concerning, or to construe rules governing, yard conductors or freight conductors; the evidence, objections, and ruling of the court being as follows: 'Q. What

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