Shelton v. Southern Ry. Co. &dagger
| Citation | 67 S.E. 899,86 S.C. 98 |
| Court | United States State Supreme Court of South Carolina |
| Decision Date | 22 April 1910 |
| Parties | SHELTON v. SOUTHERN RY. CO. et al.† |
The object of pleading is to advise the parties of the issues they will be called on to meet, and to give them opportunity to prepare for trial.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 1; Dec. Dig. § 1.*]
Where the complaint, in an action for injuries to a passenger, advised the carrier that it was charged with recklessness in running the train at a high speed over a defective roadbed, and its counsel so construed it and the case as developed, had reference to the fact that the train was being run at an excessive speed, an amendment to conform to the proof, received without objection, alleging more clearly the nedigence in running the train at a high speed, was in furtherance of justice and within the court's power to grant under Code Civ. Proc. 1902, § 194.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 614; Dec. Dig. § 237.*]
Where an amendment to a pleading asked for immediately before or during the trial, operates as a surprise to the adverse party, whereby he will be misled to his prejudice, he must prove that fact by affidavit or otherwise, and, when that is done, the amendment must either be refused, or, if granted, the adverse party must be given time to prepare to meet the amended pleading.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 629; Dec. Dig. § 239.*]
In an action for injuries to a passenger, a complaint alleging negligence in running the train at a high speed over a defective roadbed was sufficient to permit evidence that some of the train crew were under the influence of liquor.
[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 1281; Dec. Dig. § 315.*]
A declaration to be admissible as a part of the res gestae, must be substantially contemporaneous with the transaction and be the spontaneous utterance of the mind while under the influence of the transaction.
[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 297, 298; Dec. Dig. § 118.*]
The trial judge has sound discretion in ruling on declarations offered as a part of the res gestae, and unless it clearly appears that its ruling was erroneous, the court on appeal will not reverse it.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3850; Dec. Dig. § 970.*]
Where, in an action for injuries to a passenger by the derailment of the train, evidence of plaintiff showed that the second car from the engine first jumped the track, and that the engine ran on about three-quarters of a mile without a stop, and the engineer testified that he stopped within 150 or 200 yards, the admission as part of the res gestae of the statement of the engineer running his engine back to the wreck as to the cause of the accident, was not erroneous.
[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 364, 365; Dec. Dig. § 123.*]
Where, in an action for injuries to a passenger by the derailment of the train, the engineer testified and on cross-examination admitted that he might have made a certain statement, the error if any in admitting evidence of the statement as a part of the res gestae was not prejudicial.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4162; Dec. Dig. § 1051.*]
Where the facts on which an opinion of a witness is based cannot be adequately described or presented to the jury, the witness may give his opinion, and he may testify to the mental attitude of another judging from his appearance and demeanor.
[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2242; Dec. Dig. § 478.*]
In an action for injuries to a passenger by the derailment of the train caused by the running of the train at an excessive speed over a defective track, the error, if any, in admitting the testimony of plaintiff that after the accident the conductor became very solicitous and ran the train very slowly, was not prejudicial.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4153, 4154; Dec. Dig. § 1050.*]
Where in an action for injuries to a passenger by the derailment of the train, the court charged that plaintiff must prove negligence in the operation of the train by a preponderance of the evidence, a charge that unless it appeared that the derailment was accidental, the jury must determine whether there was negligence, and that if plaintiff failed to establish, by preponderance of the evidence, the negligence, the verdict must be for the carrier, was not erroneous as imposing on it the burden of disproving negligence before the defense that the derailment was accidental was available.
[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 1334; Dee. Dig. § 321.*]
A passenger who proves an injury caused by some agency or instrumentality of the carrier makes out a prima facie case, and the law raises a presumption that the injury was caused by the carrier's negligence, and the burden is on it to overthrow the presumption by proving that the injury was accidental or due to other causes than its neglect.
[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1262, 1283, Dec. Dig. § 316.*]
Whether the derailment of a train causing injury to a passenger was caused by a broken flange on one of the wheels of the car that first jumped the track, and whether the proximate cause of the derailment was the high speed of the train or the broken flange held for the jury.
[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1179, 1315; Dec. Dig. § 320.*]
Appeal from Common Pleas Circuit Court of York County; J. C. Klugh, Judge.
Action by W. J. Shelton against the Southern Railway Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.
McDonald & McDonald and B. L. Abney, for appellants.
Legare, Holman & Baker, Finley & Jennings, and John Gary Evans, for respondent.
HYDRICK, J. Plaintiff recovered judgment against defendants for injuries sustained while he was a passenger on defendants' road by the derailment of the car on which he was riding.
In the third paragraph of the complaint, it is alleged that the train was derailed "while moving at a high rate of speed, and was hurled with great force from the track, and was almost demolished and destroyed, and that the plaintiff by reason of the force and effect thereof, was thrown with great violence against the side of the wrecked car in which he was sitting, and was caught and fastened in said wreck, and that by reason thereof, he received serious and permanent injuries in his back and legs, and that his nervous system was shocked."
The fourth paragraph is as follows: "That the plaintiff was caused to be injured in the manner and by the means aforesaid, by and through the negligent, wanton, willful, and reckless acts of the defendant, its servants and agents, in maintaining and keeping a defective track and roadbed at the point on the line of its road above mentioned, and by running its said train at an exceedingly high rate of speed thereon, which was the cause of the derailment of said train."
Testimony was introduced both by plaintiff and defendants, without objection, as to the speed of the train. At the conclusion of defendants' argument, the court allowed the complaint amended by inserting in the fourth paragraph thereof the words italicized. The reason given by the court for allowing the amendment was, in part, "the whole drift of the case, not only the argument of counsel here, but the whole drift of the case, while it was being developed, had reference to the fact that the train was being run at a rate of speed, which the plaintiff alleges, and those representing him, to be negligent." The record fully sustains this statement of the court.
By a liberal construction of the complaint, even without the amendment, uegligence and recklessness are alleged as to the speed of the train. In the allegation of the fourth paragraph "that the plaintiff was caused to be injured in the manner and by the means aforesaid, by and through the negligent
* * * and reckless acts of the defendant
* * * in maintaining and keeping a defective track and roadbed, " etc., the words "by the means aforesaid" couple the high rate of speed with the defective roadbed, as acts of negligence and recklessness causing the injury. That the complaint was so understood and interpreted by defendants' attorney clearly appears from what he said in objecting to testimony as to the train crew being under the influence of liquor, on the ground that there was no allegation in the complaint as to that matter. He said, in referring to the allegations of the complaint:
Section 194 of the Code of Civil Procedure of 1902 gives the court the power, in its...
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