Oliver v. Columbia, N. & L.R. Co.

• Decision Date: 08 December 1902
• Citation: 43 S.E. 307,65 S.C. 1
• Parties: OLIVER et al. v. COLUMBIA, N. & L. R. CO.
• Court: South Carolina Supreme Court

43 S.E. 307

65 S.C. 1

OLIVER et al. v. COLUMBIA, N. & L. R. CO.

Supreme Court of South Carolina

December 8, 1902

Appeal from common pleas, circuit court of Richland county; Benet Judge.

Action by Alice E. Oliver and P. M. Oliver, her husband, against the Columbia, Newberry & Laurens Railroad Company. From judgment for plaintiffs, defendant appeals. Affirmed.

See 33 S.E. 584.

The following are the exceptions:

"(1) Because the court allowed the witness W. M. Fitch to state, over the objection of defendant's counsel, that he shouted to the engineer when he saw this accident about to occur, and to state the reason for his shouting or holloing whereas it is submitted that the statements of the witness to the engineer is not competent evidence, more especially when there is no proof that the engineer heard his call.

(2) Because the court erred in allowing the witness W. M Fitch, over the objection of defendant's counsel, to state, after Mrs. Oliver had been placed on board the train after the accident, what she did, what she said; whereas, it is contended that her expressions at that time were not competent evidence.

(3) Because the court allowed counsel for the plaintiff Mrs Oliver, over the objection of defendant's counsel, to ask the witness W. M. Fitch this question: 'Can you state positively whether or not it was the same conductor, or whether they changed conductors at Clinton?' whereas it is submitted that that form of questioning was leading.

(4) Because the court allowed the witness Hill to testify over the objection of defendant's counsel, as to the accommodations for passengers at the place where Mrs. Oliver fell; whereas it is contended that the defendant company, having transported the passengers to Clinton, which was even beyond the terminus of its own line, was not called upon to furnish them accommodations with reference to their further journey.

(5) Because the court allowed the witness Hill, over the objection of defendant's counsel, to state to what extent the depth of the ditch or drainage way at the side of the track would increase the length of the step that would be taken from the platform to the ground; whereas it is contended that, inasmuch as this injury did not occur in stepping off of the platform to the ground, but in passing from one coach to another, that matter was irrelevant and incompetent.

(6) Because the court allowed the witness Padgett to state, over the objection of counsel, that when he went from the train on which Mrs. Oliver was to another train that was standing at the depot at Clinton, that he could get no further on that train than the platform; whereas it is submitted that with the condition of that other train the defendant in this case had nothing to do, and for its condition was not answerable.

(7) Because the court allowed the witness P. M. Oliver to state what amounts he had paid physicians for attending to his wife, over the objection of defendant's counsel; whereas it is suggested that, this being a suit on the part of the wife, expenses borne by the husband could not form an element of damages.

(8) Because the court allowed the witness P. M. Oliver to state the condition of Dr. Hildebrand, especially as it related to his tongue, when it is especially submitted that Dr. Hildebrand's condition had nothing whatever to do with the issues presented in this case.

(9) Because the court allowed the witness Thomas E. Campbell to state, over the objection of defendant's counsel, and on the inquiry of the court itself, that he bought a ticket to Atlanta; whereas the ticket, being the highest evidence, should have been produced, to show to what point it entitled the purchaser to a passage.

(10) Because the court allowed Mrs. Alice E. Oliver, over the objection of defendant's counsel, to state that: "Ten thousand dollars seems to be a pretty paltry sum. I do not consider it enough money to recompense,'--whereas it is respectfully submitted that she should only have been allowed to state her condition, and that the jury were the ones to fix the amount of damages she had sustained.

(11) Because the court refused to allow defendant's counsel to cross-examine and bring out the fact that Mrs. Alice E. Oliver, the statements of Judge Jones that she had herself introduced as testimony to support her case on the former trial of it.

(12) Because the court allowed the deposition of Dr. Roy to be read to the jury, over the objection of defendant's counsel, when it is respectfully submitted that this could not be done unless it had also been proven that Dr. Roy was, at the time of the trial, beyond the jurisdiction of this court, or a resident of another state, and because these depositions were taken for the purpose of a former trial, and were not valid for the purpose of this trial.

(13) Because the court erred in admitting, over defendant's objection, the testimony of Dr. Roy, taken under commission, because, said testimony being taken under a special notice, the notice should have stated the reason for which the testimony was taken; second, it was only good for the trial for which the notice was given; and because no reason was given for the nonattendance of the witness himself.

(14) Because the court erred in allowing Dr. Roy, over the objection of defendant's counsel, to answer the question, 'State what you found to be the matter with her'; whereas it is suggested he should only have been allowed to detail the symptoms.

(15) Because the court erred in allowing Dr. Roy to answer, over the objection of the defendant: '19th Direct. Doctor, suppose that a woman in the early stages of pregnancy should be standing on the platform of a railway car, and by the sudden movement of the car should be thrown from the platform to the ground; and suppose that, prior to the said fall, there were no physical indications of injuries of any character on this woman; and suppose that, shortly after this fall, an examination by a physician should disclose bruises on the hip and back of this woman, and the displaced condition of her uterus,--what, in your opinion, as a medical expert, would you say was the cause of said injuries?' Whereas it is submitted that that was a question for the jury, and not for the witness.

(16) Because the court erred in allowing Dr. Roy to answer the question, over the objection of defendant's counsel: '23d Direct. State what danger, if any, there would be of a miscarriage? (Defendant objects as not being pertinent to the facts of the case.)' Whereas it is submitted that that question was not relevant to this case.

(17) Because the court erred in allowing, over the objection of the defendant, Dr. Roy to answer the question: '31st Direct. Doctor, what is the amount of your bill for attending Mrs. Oliver at the above-mentioned time? (Defendant objects as being incompetent.)' Whereas it is submitted that, inasmuch as there was no proof that Mrs. Oliver paid this bill, or was liable therefor, it is not competent.

(18) Because the court erred in allowing the witness Mrs. Dunlap to state what other parties said, to wit, 'You can't get any seat; there is no light; you can't get out,'--over the objection of defendant's counsel, thereby allowing hearsay evidence to go to the jury.

(19) Because, upon the motion for a nonsuit, his honor the presiding judge should have ruled that the action was based upon an allegation of a special contract made between the plaintiff Mrs. Oliver and the defendant by the purchase of a ticket; that the testimony on the part of the plaintiff showed that her passage from Columbia to Clinton was made in part on the defendant road only as far as Dover Junction, and thence over the line of a connecting road, which was a part of the line which was to transport them on to Atlanta; that the liability of the defendant as a common carrier is only for that part of the journey on its own line; and that, if it was liable for anything that happened at Clinton, its liability was due to some special contract, and the plaintiff had failed to introduce any testimony tending to prove any special contract; and, consequently, that there was no testimony to go to the jury to establish that at the time of the alleged accident the defendant was under liability to the plaintiff, and should have granted the nonsuit.

(20) Because, upon the motion for a nonsuit, his honor should have held that, if the testimony tended to prove that the accident to the plaintiff happened immediately after the arrival of the train at Clinton, it was both alleged in the complaint and proven by plaintiff's testimony that notice had been given by the conductor and other officers of the train of the purpose of the railroad company to shift the car in question from that train, and therefore passengers should have been on the lookout for the separation of the cars, and there was no breach of duty, and no testimony tending to show any breach of duty, on the part of the defendant, in separating its train at the time stated, there being no testimony tending to show that there was any jerk, but simply a gentle moving off of the car.

(21) Because, upon the motion of a nonsuit, his honor should have held that the testimony tended to prove that the accident happened some time after the arrival of the train at Clinton, and after notice had been given of its arrival, and, if the plaintiff had retained her seat in that car for any purpose of her own, then the relation of carrier and passenger between the plaintiff and the defendant had ceased, and the plaintiff could not recover under the allegations of her complaint.

(22) Because in his charge to the jury his honor used the following language: 'In one view of this case, it may be regarded as a three-cornered contest. It is primarily a suit brought by Mrs. Alice E.

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