White v. Southern Ry. Co

Decision Date22 November 1927
Docket Number(No. 12323.)
Citation140 S.E. 560
CourtSouth Carolina Supreme Court
PartiesWHITE. v. SOUTHERN RY. CO. et al.

Cothran, J., dissenting.

Appeal from Common Pleas Circuit Court of Spartanburg County; C. C. Featherstone, Judge.

Action by A. L. White against the Southern Railway Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.

De Pass & Wrightson, of Spartanburg, and Frank G. Tompkins, of Columbia, for appellants.

Nicholls, Wyche & Byrnes, of Spartanburg, for respondent.

STABLER, J. The statement of fact in this case follows more or less closely the well-prepared statement contained in the printed argument of appellant's counsel.

The case involves an appeal from a judgment based on a verdict of $15,000 against the appellants, which grew out of a suit for damage to real property of the respondent instituted by him on July 3, 1925, in the court of common pleas for Spartanburg county.

The respondent, together with his brother, his son, and his daughter, executed an option giving the Southern Railway Company the right to purchase, for the sum of $25,000, certain property for use as a right of way in constructing a new belt line, the option being dated March 19, 1924, and running for 60 days, but being thereafter extended to June 5, 1924. The option refers to the lands as "moreparticularly shown on, plat of Southern Railway right of way made February 4, 1924, and on file in the office of the chamber of commerce of Spartanburg, S. C, " and contains the following provision:

"Said consideration is to be in full settlement of all damages to our property as well as for the purchase price thereof."

Respondent and his brother, on May 31, 1924, executed a deed of conveyance to Southern Railway-Carolina Division, conveying for railroad purposes the lands owned by them and described in the option, the consideration paid being $11,000. The deed contains the following provisions:

"It is understood by the grantors that the land hereinbefore described and hereby conveyed will be used by the grantee in the construction, maintenance, and operation of a railroad, and the grantors, for themselves, their heirs and personal representatives further agree that the consideration hereinbefore recited and paid by the grantee includes, not only the value of the said land hereby conveyed, but also all and any incidental or consequential damages accruing to other and adjacent lands of the grantors from or on account of construction and maintenance of said railroad upon the land hereinbefore described and hereby conveyed."

The right of way of the proposed belt line crossed in a general direction from east to west underneath the public highway known as state highway No. 8, which is an extension of East Main street of the city of Spartanburg, although the property in controversy in this case lies outside the city limits. Respondent was one of the citizens of Spartanburg to guarantee $250,000 to aid in the construction of the belt line.

Respondent's brother subsequently died, leaving to him by will the remaining half interest in the balance of the tract of land out of which the right of way was sold. The land lies on both sides of the highway, having a total frontage thereon of about 770 feet.

On December 9, 1924, on petition of the Southern Railway Company, an order was obtained from the state highway commission permitting that company to construct at its own expense an underpass for the belt line under state highway No. 8, and allowing it to raise the grade of the highway sufficiently to carry traffic over a concrete bridge to be constructed on the highway; the order stating that "Southern Railway Company hereby assumes all responsibility for any damage that may arise from the change or elevation of the grade of said highway."

Where respondent's property fronted on the highway, prior to the construction of the underpass, the highway was already at a grade above the level of respondent's property, and in preparing the approaches to the bridge appellants increased this fill several feet.

For alleged damage to his remaining property fronting on the highway, due to such raising of the grade, respondent brought this suit. At the close of the testimony appellants moved for a directed verdict upon the ground that all the elements of damage claimed by the respondent are covered by the release which he executed to Southern Railway-Carolina Division, in his deed of May 31, 1924. This motion was denied, and the case submitted to the jury, who rendered a verdict of $15,000 in favor of the plaintiff. A motion for a new trial was overruled, and judgment on the verdict was entered against appellant.

The matter comes before this court upon thirteen exceptions, which will be considered in regular order.

First exception:

"The court erred in allowing respondent to testify as to statements made by Major Bernard; the error being that there was no evidence of his having any authority to bind appellants by making any statement as to the raising of the highway."

Respondent testified that Major Bernard was a representative of the railway company, and was the first man who came to see him about procuring the right of way for the company. But it does not appear in the record that respondent testified to any statement made by Major Bernard with reference to the raising of the grade. The testimony as to what Major Bernard actually said was harmless. There was no error.

Second exception:

"The court erred in allowing the respondent to testify as to conversation with and statements made by Major Bernard and Mr. Pearce Home regarding the raising of the highway; the error being that the evidence shows that these conversations and statements were had and made several months after the deed from respondent to appellants dated May 31, 1924, and were therefore incompetent."

We have already discussed the testimony as to Major Bernard's statements. When the respondent was on the stand, he related a short conversation, which, after the execution of the deed, he had with Mr. Home, a representative of the railroad company, with reference to the damage which respondent claimed was being done to his property by the raising of the grade of the highway. The record does not show that there was any objection to the admission of the testimony, and the question, raised here by exception for the first time, is not properly before this court. But, even if the testimony had been objected to, its admission was harmless, as Mr. Home merely said, as disclosed by the record, that the Southern Railway was not interested in the fill. This statement could have had no effect other than to deny the railroad's liability, which position the railroad takes by its answer in this suit, and still maintains.

Third exception:

"The court erred in allowing respondent, A. L. White, and the witness, H. B. Stribling, totestify as to a bump in the highway on the west, or city side, of the bridge, and in refusing the motions to strike out the same; the error being that such evidence related to that portion of the highway across the railroad, beyond respondent's property, and is not within the compass of the damages sued for in the complaint."

While the testimony shows that the "bump" in the highway is beyond respondent's property, it also shows that the bridge over which the highway passed and the approach to which is involved in this action was located on the "bump, " and there was no error in admitting the testimony, in order to show, as stated by the trial judge, general conditions relevant to the whole situation.

Fourth exception:

"The court erred in allowing respondent to testify what happened before Supervisor Vernon, and that Supervisor Vernon refused to give appellants permission to cross highway No. 8; the error being that the supervisor of Spartanburg county had no jurisdiction in the premises, and whatever he did could have no bearing on respondent's cause of action."

When the respondent offered testimony as to a conference with the county supervisor, appellants' counsel objected to the testimony on the ground that the respondent had already proved that the county, after the respondent protested, tore down the fill, and that subsequently the Southern Railway rebuilt it, but the court overruled the objection. When the respondent was asked whether the supervisor gave the Southern Railway permission to cross highway No. 8, appellants' counsel objected on the ground that the railway company was not represented at the conference, but the court allowed respondent to testify that the supervisor did not give such permission. No objection to the testimony was made on the ground that the supervisor had no jurisdiction in the matter; this objection being raised here for the first time by exception. It is a well established principle that a ground of objection not ruled upon by the presiding judge cannot be urged in this court. Allen v. Cooley, 53 S. C. 77, 30 S. E. 721; Norris v. Clinkscales, 59 S. C. 232, 37 S. E. 821; Colvin v. Oil Co., 66 S. C. 61. 44 S. E. 380; General Electric Co. v. Blacksburg Land & Improvement Co., 46 S. C. 75, 24 S. E. 43; Jones v. Devereaux, 90 S. C. 513, 73 S. E. 1027; Smith v. Union Buffalo Mills Co., 100 S. C 120, 84 S. E. 422. But, even if the testimony had been properly objected to and its admission erroneous, it was not prejudicial, since the state highway commission, the body having authority in the matter, later granted the appellants permission to raise the highway, and this action is brought for damages alleged to have been suffered from the actual raising of the highway in accordance with such permission.

Fifth exception:

"The court erred in allowing respondent to testify in reply that, if he had seen the map on file in the chamber of commerce, he would not have known anything about the elevation of the bridge; the error being that, after he had signed the option, of which the map was a part, he was bound by whatever it disclosed."

When the testimony...

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