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

• Decision Date: 05 February 1931
• Docket Number: 13062.
• Citation: 156 S.E. 874,159 S.C. 266
• Parties: SANDERS v. CHARLESTON CONSOL. RY. & LIGHTING CO.
• Court: South Carolina Supreme Court

156 S.E. 874

159 S.C. 266

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

No. 13062.

Supreme Court of South Carolina

February 5, 1931

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

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: That on or about the 20th day of November, 1926, plaintiff and his nephew, Carroll Huggins, a lad of about sixteen years of age, were in the yard in the rear of premises, corner Harris and Meeting Streets, in the City of Charleston, where the said plaintiff lived; that the said Carroll Huggins, in play and sport tied a long wire to a piece of iron and telling his grandmother that he was going to throw it into the marsh, threw the iron with the wire attached in the direction of the marsh; that the piece of iron fell and in doing so the wire attached to said iron came across an electric wire owned by said defendant corporation and strung along said Harris Street and carrying a high and deadly current of electricity, the insulation on said wire having been allowed by said defendant to become worn and defective; that when the said lad, Carroll Huggins, saw that the wire attached to the piece of iron which he had thrown had caught over said electric wire, he ran out in the street and in a few minutes plaintiff heard him scream and rushed out to see what the trouble was; that as he did so and got in the street he saw his nephew, Carroll Huggins, lying on the ground dying, the said nephew having come in contact with the wire which had been thrown over the electric wire of defendant corporation, which said electric wire was carrying a high and dangerous current of electricity and on which the insulation had been allowed by said defendant to become worn and defective; that in the alarm, confusion, excitement and emergency of the situation, in going to the aid of said nephew, plaintiff became entangled in the wire attached to the missile which the said Carroll Huggins had thrown, and said wire, having become highly charged with electricity by reason of the insulation on said wire belonging to said defendant having been allowed to wear off, and become defective, he received a frightful and terrible shock from said highly charged wire, he was rendered unconscious, his right hand was burned at the wrist and side and crippled, he was badly burned on the side and back, burned in the mouth and nose and his left hand so horribly and frightfully burned that it was obliged to be amputated above the wrist. He was taken to a hospital where he remained for weeks and weeks, suffering the most excruciating and agonizing pain, was afterwards taken to his home, still suffering, and is permanently disfigured, maimed and crippled."

Following these allegations, the plaintiff, in naming specific acts of negligence, further set forth the following additional allegations:

"Third: That the injuries to plaintiff, as aforesaid, were caused by the negligence, carelessness, recklessness and wantonness of said defendant corporation, its agents and servants, in the following particulars, to wit:

"(a) In causing and allowing the insulation to be worn off and become defective on its wires on Harris Street, which said wires carried a high and dangerous electric current.

"(b) In failing and omitting to keep said wires, carrying said high and dangerous current of electricity over a publc street in the City of Charleston, properly insulated.

"(c) In failing and omitting to have made any proper inspection of said wires, carrying said deadly current of electricity, so as to have ascertained their defective condition.

"(d) In failing and omitting to have said wire insulated, as required by

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