Thomassonb v. Southern Ry.*

Decision Date20 May 1905
Citation51 S.E. 443,72 S.C. 1
PartiesTHOMASSONb v. SOUTHERN RY.*
CourtSouth Carolina Supreme Court

1. Railroads—Accident at Crossing—Evidence.

In an action for personal injuries at a street crossing which had been blocked for a longer time than permitted by the ordinance of the town, evidence was admissible to show that plaintiff and others were laborers, who hadgone home for dinner, and had only a few minutes to return to their work, and that plaintiff's foot was crushed while attempting to pass between the standing cars.

2. Trial — Instructions — Question for Jury.

It is not error, where an ordinance has been duly proved, and its terms are plain, for the court to charge the jury to determine what the ordinance is, and whether it has been violated.

3. Same—Expression of Opinion.

Where the court refuses to charge that there is no evidence that the acts in question were willful, it is not an expression of opinion for him to say that there is some evidence of such acts, if there be such evidence.

4. Railroads—Accident at Crossing—Negligence—Instructions.

In an action against a railroad for injuries at a crossing, an instruction that gross negligence is sometimes defined as entire absence of care, and willful negligence as such conduct as shows an intentional disregard of the precautions which a prudent person would exercise, and that a person may be careless intentionally, may be grossly careless intentionally, and may be willfully disregardful of the care he ought to exercise, did not put on defendant a greater burden of proof than the law required.

5. Same—Punitive Damages.

On evidence of a willful, wanton, or reckless act, done with a reckless design, or utter disregard of the rights of others, punitive damages may be awarded, without proof of malice towards the person injured.

Appeal from Common Pleas Circuit Court of Spartanburg County; Benet, Special Judge.

Action by Claude Thomasson against the Southern Railway. Judgment for plaintiff, and defendant appeals. Affirmed.

C. P. Sanders, for appellant.

Stanyarne Wilson and C. P. Sims, for respondent.

POPE, C. J. This was an action brought to recover $15,000 for personal injuries received by the plaintiff on the 25th day of March, 1902, for having his foot crushed between the bumpers of two of the cars of the defendant company near the depot of the defendant in the town of Gaffney, S. C. The complaint alleges that the train of the defendant was standing across one of the streets of the town of Gaffney, blocking the same, for over 20 minutes, in violation of one of the ordinances, which prohibited any train from blocking any street for more than 5 minutes; that the plaintiff was compelled to pass between two of the defendant's cars which were standing across said street in order to go to his work, which was in the cotton mill; that while so attempting to pass between said cars the servants of the defendant who were in charge of said train, without any warning of their intention, either by sounding the whistle or ringing the bell, moved said cars willfully, wantonly, carelessly, and negligently, and, in utter disregard of the rights of the plaintiff, caused the cars to be moved, crushing plaintiff's foot between the bumpers, and mashing it so badly that it had to be amputated. The answer of the defendant denied all of the material allegations of the complaint which alleged any negligence, willfulness, or wantonness on its part, and it set up the affirmative defense that the plaintiff was guilty of contributory negligence. Both parties introduced testimony going to show that this was a freight train. The plaintiff alleged that said train occupied the street for more than 20 minutes, while the defendant's testimony was that only for 4 or 5 minutes at one time did its train occupy said street. There was testimony going to show that it was almost impossible for the defendant to transact its business in said town of Gaffney without occupying the street more than 5 minutes; that an engine was hitched to said train with steam, ready to move at any time, and that the plaintiff undertook to cross the track when the said train of cars was moving or shifting; that just at the moment it came to a standstill, and before reversing its motion, plaintiff undertook to pass over the bumpers of the cars, and that, in undertaking to climb between the cars, he took the risk of being injured; that by walking 100 yards plaintiff could have easily gone around the train; that none of the employés of the defendant had any knowledge whatever of the fact that either the plaintiff or any one else was attempting to cross over the bumpers of the cars at the time they undertook to cross the train, or that any one was in the slightest danger of being injured. The evidence was conflicting as to the following facts: As to whether this train was standing across this street for more than five minutes, and as to whether it moved without sounding the whistle or ringing the bell. Several witnesses were allowed to testify, against the objection of the defendant, that others had crossed between these cars on the day named and at other times, and to give their reasons why they passed between them. This evidence was objected to on the ground that it was incompetent, irrelevant—being the act of an independent third party, not connected with this suit—and not responsive to any of the allegations in the complaint. His honor allowed the evidence to go in. The defendant requested his honor to instruct the jury that there was no evidence of willfulness or wantonness, and that no vindictive or punitive damages could be given. His honor refused the request, stating that there was some evidence tending to prove an intentional and willful act. The defendant requested the court to charge as follows: "A town or city has no right to pass an ordinance which is unreasonable, and, if it does pass an unreasonable ordinance, then such ordinance cannot be enforced." His honor refused this request, and instructed the jury that an ordinance could be enforced, even though it was unreasonable, and that it would be unlawful to disregard it. In reference to the defense of contributory negligence on thepart of the plaintiff, under the statutes, his honor charged the jury thatgross negligence was an entire absence of care, and also that gross negligence was an intentional act. After hearing the testimony and the charge of his honor, the jury returned a verdict of $7,500. A motion was made for a new trial on the minutes of the court, which was refused. From the judgment entered upon the verdict the defendant has appealed; challenging the correctness of his honor's ruling in admitting the evidence excepted to, as well as the correctness of his charge in the matters herein referred to.

We will first consider the exceptions from 1 to 10, inclusive, which are as follows:

"(1) In allowing the following question to be asked the witness Gaston, to wit: 'State whether or not you crossed over the train at any crossing that day?' And in allowing the witness to answer the same. The error being that this question was incompetent and irrelevant; it being the act of an independent third party, not connected with this suit, and there being no allegations in the complaint in reference to any such act.

"(2) In allowing the following question to be asked the witness Gaston, to wit: 'How did you cross the track?' And in allowing him to answer the same. The error being that this was incompetent and irrelevant; it being the act of an independent third person; there being no allegations in the complaint in reference to it.

"(3) In allowing the following question to be asked the witness, Gaston, to wit: 'Why did you cross between the cars?' And allowing him to answer this question; the same being incompetent and irrelevant, being the act of a third person, and being speculative, and there being no allegations in the complaint in reference to it.

"(4) In allowing the following questions to be asked the witness, Gaston: 'Well, state whether or not other people did the same thing?' 'Did you cross over the train again?' And in allowing the witness to answer the same. The error being that these questions were incompetent and irrelevant, being as to the act of other people not connected with this suit, and there being no allegations in the complaint in reference to the same.

"(5) In allowing the following question to be asked the witness Gaston: 'Mr. Gaston, if you had heard the whistle blow or the bell ring, would you have tried to cross?' And in allowing the witness to answer the same. The error being that this was incompetent and speculative, in that it allowed this witness to give his opinion as to bis act; he being a third person, not connected with this suit, and there being no allegations in the complaint in reference to it.

"(6) In allowing the following questions to be asked the witness Gaston, to wit: 'How did people get across the street when it was Mocked that way?' 'What did the majority do?' And in allowing the witness to answer the same. The error being that these questions were incompetent and irrelevant, in that they referred to the acts of people who were third parties, not connected with this suit, and tended to prove the custom of other people, and there being no allegations of the complaint in reference to the same.

"(7) In allowing the following question to be asked the witness J. D. Belch: 'Do you crossover this crossing going to dinner?' And in allowing the witness to answer the same. The error being that this was incompetent and irrelevant, in that it referred to theact of a third person; there being no allegations in the complaint in reference thereto.

"(8) In allowing the following questions to be asked the witness W. C. McAbee: 'Did you see other people crossing there at that time ahead of Mr. Thomasson?' 'How many did you see?' And in allowing him to answer the same. The error being that this was incompetent and irrelevant, it being...

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23 cases
  • O'Dowd v. Waters
    • United States
    • South Carolina Supreme Court
    • 10 Diciembre 1924
    ... ... 241; Darlington v. Ward, 48 S.C. 570, 26 ... S.E. 906, 38 L. R. A. 326; Thomasson v. Ry. Co., 72 ... S.C. 1, 51 S.E. 443; Dillingham v. Spartanburg, 75 ... S.C. 549, 56 S.E. 381, 8 ... ...
  • O'dowd v. Waters
    • United States
    • South Carolina Supreme Court
    • 10 Diciembre 1924
    ...of the council. City Council v. Ahrens, 4 Strob. 241; Darlington v. Ward, 48 S. C. 570, 26 S. E. 906. 38 L. R. A. 326; Thomasson v. Ry. Co., 72 S. C. 1, 51 S. E. 443; Dillingham v. Spartanburg, 75 S. C. 549, 56 S. E. 381, 8 L.R.A. (N. S.) 412, 117 Am. St. Rep. 917, 9 Ann. Cas. 829; Jones v.......
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    • 7 Mayo 1996
    ...Genay v. Norris, 1 S.C.L. 6 (1 Bay 6) (1784). See also Pepoon v. Clarke, 8 S.C.L. 137 (1 Mill Const. 137) (1817); Thomasson v. Southern Railroad, 72 S.C. 1, 51 S.E. 443 (1905); Eaddy v. Greensboro-Fayetteville Bus Lines, 191 S.C. 538, 5 S.E.2d 281 (1939). Historically this Court has held th......
  • Ward v. Town of Darlington
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    • South Carolina Supreme Court
    • 6 Abril 1937
    ... ... so great as to violate constitutional privileges." ... Citing State ex rel. Southern Ry. Co. v. Earle, 66 ... S.C. 194, 44 S.E. 781; Thomasson v. R. R. Company, ... 72 S.C. 1, 51 ... ...
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