Rembert v. South Carolina Ry. Co

• Decision Date: 12 July 1889
• Citation: 9 S.E. 968,31 S.C. 309
• Parties: Rembert v. South Carolina Ry. Co.
• Court: South Carolina Supreme Court

9 S.E. 968

(31 S.C. 309)

Rembert

v.South Carolina Ry. Co.

Supreme Court of South Carolina.

July 12, 1889.

Instructions—Pleading.

1. In an action for damages caused by plaintiff's team falling off from a bridge maintained by defendant, the court properly answered, in reply to defendant's request to charge that there was no law requiring a railroad company to build a bridge of any particular width, that "it must be a safe structure."

2. In such action it is not a violation of the constitutional provision against instructing the jury "in respect to matters of fact, " for the court to call the jury's attention to the broad powers of eminent domain granted to railroad companies.

3. An allegation in the complaint that defendant is a corporation is not put in issue by a general de nial.

Appeal from common pleas circuit court of Kershaw county; Aldrich, Judge.

Brawley & Barnwell and P. H. Nelson, for appellant. W. M. Shannon, for respondent.

McGowan, J. This action was brought by the plaintiff against the defendant company for damages on account of injuries to the property of the plaintiff, caused by the negligence of the company. The complaint alleged that the defendant is a railroad company, duly incorporated under the laws of the state of South Carolina; that at a certain point in Kershaw county the railroad track of the company crosses the public road, and within their right of way they had opened a ditch across the highway, and built a bridge over it, which it was the duty of said company to keep in repair; that on January 6, 1888, the plaintiff, driving a two-horse buggy, was returning to his home, and, being obliged to cross the bridge, it was so negligently constructed that the plaintiff's horses fell off into the ditch, and were thereby seriously injured, and the buggy and harness badly broken, to the damage of the plaintiff $500. The answer was that "the defendant above named, by Brawley & Barnwell, its attorneys, answering the complaint herein, says it denies each and every allegation in the complaint contained." The cause came on for trial before Judge Aldricn and a jury. There was evidence tending to show that the bridge was about nine feet wide; that it was a temporary structure, the lumber being already there to make a permanent bridge; that one of the horses shied, and knocked the other into the ditch; that the other horse and the buggy followed; that the horses broke loose from the buggy, leaving it considerably damaged, and ran off, etc. Upon the close of the plaintiff's testimony, the defendant's attorney moved for a non-suit, on the ground that the plaintiff had failed to prove his case; that the complaint alleged that the defendant company is "duly incorporated, " which was not proved; that theanswer was a general denial, which put in issue every allegation of the complaint. The judge refused the motion, ruling that it was not necessary, under a general denial, for the plaintiff to prove that the defendant was "an incorporated company, " but if it were necessary he would allow the plaintiff then to offer the proof. The case went to the jury. The defendant made several requests to charge, but it is unnecessary to notice any of them, except the one as to which the charge was objected to. Defendant's attorney requested the judge, as a matter of law, to instruct the jury "that there is no law in this state requiring a railroad company to build a bridge any particular width, " to which the judge replied: "It must be a safe structure."...