Sanders v. Charleston Consol. Ry. & Lighting Co, 13062.

CourtUnited States State Supreme Court of South Carolina
Citation156 S.E. 874
Decision Date05 February 1931
Docket NumberNo. 13062.,13062.
PartiesSANDERS. v. CHARLESTON CONSOL. RY. & LIGHTING CO.

156 S.E. 874

SANDERS.
v.
CHARLESTON CONSOL. RY. & LIGHTING CO.

No. 13062.

Supreme Court of South Carolina.

Feb. 5, 1931.


[156 S.E. 875]

COTHRAN, J., dissenting.

Appeal from Common Pleas Circuit Court of Charleston County; M. M. Mann, Judge.

Action by Jabez J. Sanders, Jr., against the Charleston Consolidated Railway & Lighting Company. From a judgment for defendant, plaintiff appeals.

Reversed and remanded.

Logan & Grace, of Charleston, for appellant.

G. L. B. Rivers, of Charleston, for respondent.

CARTER, J.

This action by the plaintiff, Jabez J. Sanders, Jr.. against the defendant Charleston Consolidated Railway & Lighting Company, was commenced in the court of common pleas for Charleston county, July 30, 1927, for damages, in the sum of $100,000, for personal injuries alleged to have been sustained by the plaintiff, on or about the 20th day of November, 1926, on account of the negligence, carelessness, recklessness, and wantonness of the defendant, its agents and servants, in the particulars to which we shall hereinafter call attention. Answer to the complaint was filed by the South Carolina Power Company, as the successor to the Charleston Consolidated Railway & Lighting Company. This is the second appeal in the case. The result of the first appeal is reported in 154 S. C. 220 and 158 S. E. 438. All that was decided in the first appeal was that the judgment below would have to be reversed because the verdict of the jury should not have been received and recorded, and for that reason the case was remanded for a new trial. The second trial of the case was had at the April, 1930, term of said court of common pleas of Charleston county, before his honor, Judge M. M. Mann, and a jury. At the close of the testimony introduced on behalf of the plaintiff, on motion of counsel for the defendant, his honor, Judge Mann, granted a nonsuit, and from the judgment entered on the order of nonsuit the plaintiff has appealed to this court, alleging error in the following particulars:

"Exception I. The Presiding Judge erred in granting a non-suit upon the ground that there was ample testimony to carry the case to the jury.

"Exception II. Because the plaintiff having proved a violation of the ordinances of the City of Charleston by the defendant, requiring its wires to be insulated, and this being negligence per se, his honor should have left it to the jury to say whether this negligence was the proximate cause of the injury and on this ground erred in granting the motion for a non-suit.

"Exception III. His honor erred in granting a non-suit on the following grounds: 'But with the exhibit before me, I can only conclude that the defect in the wire is only a rare instance, it does not seem to be habitual. I cannot see how that uninsulated spot, however it may have come there, unless it is larger than the camera shows it, could be held to be a negligent act in law, knowing that insulation may from time to time become defective in spots;' the error being:

"(a) That it was for the jury to determine, with all the exhibits before it and the other testimony, whether or not the defendant was guilty of negligence.

"(b) That his honor could not take judicial cognizance of the fact (if it be a fact) 'that insulation may from time to time become defective in spots.'

"(c) That his honor could not substitute his knowledge that insulation or wiring becomes defective and therefore there was no actionable negligence on the part of the defendant in allowing its wires to become so, when the city ordinances required defendant's wires to be insulated.

"Exception IV. That his honor erred in granting the non-suit on the ground that he was estopped from considering the testimony in the present case by the decisions in the Foster and Williams cases for the reason

[156 S.E. 876]

that neither of said cases are applicable to the present case."

The following quotation from plaintiff's complaint is necessary to get a clear understanding of the facts relied upon by the plaintiff to sustain his alleged cause of action:

"Second...

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