Ward v. Charleston City Ry. Co.

• Decision Date: 01 July 1883
• Citation: 19 S.C. 521
• Parties: WARD v. CHARLESTON CITY RAILWAY COMPANY.
• Court: South Carolina Supreme Court

19 S.C. 521

WARD

v.CHARLESTON CITY RAILWAY COMPANY.

Supreme Court of South Carolina.

Jul. 7th, 1883.

1. Plaintiff having announced that she had no challenges to make, and the defendant then having challenged two jurors, the plaintiff could not afterwards demand a right of challenge; therefore, the denial of such right by the Circuit judge was not error of law.

2. Witnesses who saw a lady thrown down by a street car after she had alighted, can state in evidence their opinion as to whether she had time to get clear of the car before it moved off.

Before HUDSON, J., Charleston, November, 1881.

This was an action by Harriet Ward against the Charleston City Railway Company, a street horse car corporation, commenced July 27th, 1881. The complainant alleged serious injury to herself caused by the carelessness, negligence, &c., of the driver of the car in not giving her proper time to free herself and get out of the way of the car, and she demanded judgment for $10,000, her damages. The opinion sufficiently states the facts and points involved in the impaneling of the jury, and the evidence of the witnesses.

In dismissing the motion for a new trial, the Circuit judge, in addition to what is quoted in the opinion here, said:

But even under the plaintiff's counsel's understanding of the facts, I do not see that an error was committed. *** Could the plaintiff at this juncture then have challenged peremptorily any one of the nine of the original panel after they had been solemnly accepted? We think not, and base this opinion upon the language of the present jury law, and the aforesaid interpretations of an exactly similar law of 1841. It is too well established in practice to bear questioning, that when a party has accepted a juror and he is sworn in the cause, it is too late then to object to him peremptorily. The plaintiff so accepted eleven of this jury, and the defendant and plaintiff united in accepting nine of the twelve.

Besides, it would be perhaps in many cases greatly prejudicial to the rights and interest of a defendant, were a plaintiff allowed to accept a certain number of jurors, and, after the defendant rejects his quota, and the panel is filled anew, then to allow the plaintiff to step forward and exercise the right to challenge peremptorily any of those to whom he declared he had no objection. If such a course were allowed to either party, the other might be trifled with. It is possible that were such a rule to prevail, a wary litigant might purposely avoid challenging in the first instance experimentally, in order to take advantage of his opponent's challenges, and the drawing of the supernumeraries. In fact, it is very probable that each side would struggle to gain this vantage ground.

So that, not even from the view of the facts of the case as set forth by plaintiff, do we think she lost any right under the action and ruling of the court. Had the plaintiff, after the defendant had challenged, but before the drawing of supernumeraries had begun, asked the court to allow her to reconsider the matter, and challenge peremptorily, the court would have granted the indulgence, notwithstanding that she had in the first instance deliberately accepted eleven; but after the filling up of the jury it was too late to recommence the peremptory challenge of jurors.

As to the plaintiff's second ground, I cannot see the force of it. The defendant's counsel asked a witness on the stand, who saw the accident to the plaintiff, whether, in his opinion, she had time after alighting from the car to get clear of it before it moved on. This was objected to by plaintiff's counsel. I directed the question to be put thus, viz., whether, as a matter of fact, she did have time to get clear of the car. This was objected to by plaintiff's counsel. The witness answered in the affirmative. I regard the question as tending not to extract a mere opinion, but a fact, to wit: the witness' estimate of the length of time which an occurrence under his observation consumed.

Messrs. Campbell & Whaley, for appellant.

Messrs. Buist & Buist, contra.

The opinion of the court was delivered by

MR. CHIEF JUSTICE SIMPSON.

The appellant, Harriet Ward, brought action against the defendant, respondent, to recover damages for injuries alleged to have been caused by the negligenceof defendant's agents and servants. The accident occurred while appellant was leaving the car of defendant, and is alleged to have taken place because she was not allowed sufficient time to free herself trom the car.

When the case was called for trial, the plaintiff, being first called upon by the court to know if she had any objection to the jury, replied that she had none, except that if there was any stockholder of the company on the jury he should retire, whereupon one person retired. The plaintiff interposed no other objection. The defendant then peremptorily challenged two jurors. At this juncture, and while the clerk was preparing to fill the panel from the supernumeraries, the plaintiff claimed her right to challenge. The court understood this to be an intimation on the part of the plaintiff, that she would claim the right to challenge the jurors thus drawn to fill the panel, which he ruled could not be done. The understanding, however, of the plaintiff, as afterwards stated by her counsel, was, not that she should have the right to challenge the jurors drawn to fill the places vacated on account of defendant's challenge, but that her right to challenge generally revived after the defendant's challenge.

No objection was made to the charge of the judge, but during the progress of the trial several witnesses who were present and saw what occurred were asked by defendant's counsel, as follows, to wit: To John McPherson, “Whether the lady was or was not far enough from the car to allow it to go on without throwing her down?” To W. E. Vincent, “Was she a sufficient distance from the car to avoid the accident?” And to Philip Fogarty, “You think she was given plenty of time to get off and move away except for the drays?” These questions were objected to as calling for the opinion of the witnesses. The presiding judge...