Sharpton v. Augusta & A. Ry. Co.

• Decision Date: 18 July 1905
• Citation: 51 S.E. 553,72 S.C. 162
• Parties: SHARPTON v. AUGUSTA & A. RY. CO.
• Court: South Carolina Supreme Court

51 S.E. 553

72 S.C. 162

SHARPTON v. AUGUSTA & A. RY. CO.

Supreme Court of South Carolina

July 18, 1905

Appeal from Common Pleas Circuit Court of Aiken County; Townsend Judge.

Action by B. C. Sharpton against the Augusta & Aiken Railway Company. From judgment for plaintiff, defendant appeals. Reversed.

The third request of the plaintiff, referred to in the fourteenth exception, is as follows:

"'(3) If the jury should find that those in charge of the electric car in question failed to keep an ordinary lookout for persons upon the track, or that they failed to give such signals as would have given a warning of the approach of said car, and that the injury of the plaintiff (if he has been injured at all) was caused thereby, and that such failure to keep an ordinary lookout or such failure to give signals amounted to willfulness and wantonness, or was such a disregard of the consequences and of the rights of others as to amount to willfulness and wantonness, then the jury is charged that the defendant company would be liable for damages for any injury that may have resulted to the plaintiff through such misconduct.' I charge you that."

The defendant's exceptions are:

"(1) Because the court erred in refusing to allow counsel for defendant to ask the plaintiff, while a witness on the stand on cross-examination: 'Were you under the influence of liquor at the time you were hit by the car?' Such ruling was error: (a) Because it was the right of the defendant, upon cross-examination, to thoroughly sift the witness. (b) Because it was the right of the defendant to show what was the mental condition of the witness at the time that the acts he was testifying about occurred. (c) Because it was the right of the defendant to show that the witness was, at the time of the occurrence of the acts testified about, incompetent to have seen or heard and become conscious of the same. (d) Because it was the right of the defendant to show what was the condition of the plaintiff at the time he went upon the right of way of the defendant, so that the jury could properly estimate whether it was negligence on the part of the plaintiff to enter upon the said right of way at that time, and in his then condition. (e) Because the defendant had the right, under a general denial, to show that the injury was caused alone by the negligence of plaintiff. (f) Because the refusal to allow said question was an abuse of discretion on the part of the court.

(2) Because the court erred in refusing to allow counsel for the defendant to propound to the plaintiff, as a witness on cross-examination, the following question: 'Did you not say to Dr. Shaw at the same time, in that conversation, that you were drunk when you received your hurt?' Such ruling was error: (a) Because it was the right of the defendant upon cross-examination, to thoroughly sift the witness. (b) Because it was the right of the defendant to show the mental condition of the witness at the time that the acts he was testifying about occurred. (c) Because it was the right of the defendant

to show that the witness was, at the time of the occurrence of the acts testified about, incompetent to have seen or heard and become conscious of the same. (d) Because it was the right of the defendant to show what was the condition of the plaintiff at the time he went upon the right of way of the defendant, so that the jury could properly estimate whether it was negligence on the part of the plaintiff to enter upon the said right of way at that time and in his then condition. (e) Because the defendant had the right, under a general denial, to show that the injury was caused alone by the negligence of plaintiff. (f) Because the refusal to allow said question was an abuse of discretion on the part of the court. (g) Because it was the right of defendant to lay the foundation for impeachment.

(3) Because the court erred in refusing to allow counsel for defendant to read to George Burgess, a witness for plaintiff the contents of a letter, for the purpose of asking the witness whether or not he had authorized the said letter to be written; the said letter reading as follows:

'Lagrange, Ga., August 21, 1903.

Mr. G. H. Conklin--Dear Sir Your letter just rec. to day and answer at once. Mr. Sharpenter offered me $25.00 if I would swear I saw the car strike him and he was in S.C. I was in Ga. at work in Clarks Mill. that is what I know about it. Mr. Sharpenter said that he had one man that was going to swear for him. I don't remember his name onley his given name is Joe but I can show him to you when I come. Mr. Sharpenter wanted me to swear that he wanted me to go get him some whiskey that day that he had not drank any thing. I had not seen him in 3 or 4 weeks before the axedent and I saw him about 6 weeks after that. this is all I know about it just like I am writing. Any time that you need me I will come at once will tell you the same when I get thair that I have told you now.

I remain yours sincerely,

Gorg Burgess.

Lagrange Ga.'

This ruling was error: (a) Because it was necessary to disclose to the witness the contents of the letter, with its date, and the place from which it was written, so as to lay the foundation for impeachment or contradiction. (b) Because this was a proper method of identifying the letter for the purpose of subsequent use. (c) Because it was proper to thus prove the letter in order to contradict the previous testimony of the witness.

(4) Because the court refused to allow counsel for defendant to prove by several witnesses that the plaintiff was drunk at the time of the alleged injury. Such ruling was error: (a) Because it was the right of the defendant to show the mental condition of the plaintiff at the time that the acts he testified about occurred. (b) Because it was the right of the defendant to show that the plaintiff was, at the time of the occurrence of the acts he testified about, incompetent to have seen or heard and become conscious of the same. (c) Because it was the right of the defendant to show what was the condition of the plaintiff at the time he went upon the right of way of the defendant, so that the jury could properly estimate whether it was negligence on the part of the plaintiff to enter upon the said right of way at the time and in his then condition. (d) Because the defendant had the right, under a general denial, to show that the injury was caused alone by the negligence of plaintiff.

(5) Because the court erred in refusing to allow counsel for the defendant to examine George H. Conklin as a witness in behalf of the defendant, under the following circumstances: At the beginning of the case, at the instance of defendant, the witnesses on both sides had been sequestered. At that time it was not anticipated that Mr. Conklin would be used as a witness, and he remained in the courtroom during the trial on that day, during which time the only witnesses examined were the plaintiff and Dr. Butler. During the next day, Mr. Conklin was not only not in the courtroom, but was not in Aiken until after the noon recess, and was not in the courtroom at all until called as a witness. He was offered as a witness to testify only to facts that were brought out by the witnesses who had testified while he was out of the courtroom, and out of the city of Aiken, and was not to testify in connection with any facts that were testified to or about by the plaintiff or Dr. Butler. The errors in this are: (a) That, the reason for the rule having failed, the rule should fall. (b) Because in the interest of justice all testimony that serves to elucidate the issues should be heard. (c) Because, by allowing such testimony, no improper advantage could possibly be had by the defendant over the plaintiff.

(6) Because the court erred in the following charge to the jury: 'When a party is charged with negligence only, punitive damages cannot be given unless the negligence amounts to recklessness; then punitive damages can be given.' The error in such charge is that punitive damages are not recoverable unless the act of negligence be willful, wanton, or malicious, or so reckless as to be equivalent to wantonness. Negligence that amounts to recklessness is not sufficient to sustain punitive damages.

(7) Because the court erred in charging the jury that 'the plaintiff charged that *** he was struck by a car of the company, and was injured bodily, and suffered bodily and mental anguish'; the error in such charge being that the complaint does not set forth any claim for mental anguish.

(8) Because the court erred in refusing to give the following written request, presented by defendant: 'Voluntary intoxication will not excuse a traveler for failure to exercise ordinary care at a crossing.' Such refusal was error, because if the plaintiff's injury was caused solely by his negligence, and such negligence was due to his intoxication, the jury should have been instructed as requested. Further, this instruction should have been given, in order for the jury to properly pass upon the question as to whether or not the plaintiff was negligent in going on and remaining on defendant's right of way .

(9) Because the court erred in charging the

jury as follows: 'While a railroad company cannot lose its right of way by alienation or prescription, because of the public interest in its holding it for public purposes, it may impose upon itself, as a private corporation, duties and obligations to the public or to individuals, by inviting the use of the right of way, or indicating its willingness that it should be used by the public or particular individual. In such circumstances the duty devolves upon the railroad company to exercise ordinary care to avoid injury to those so using the right of way.' The charge was error because

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