Wilson & Co. v. Atlanta & Charlotte Airline Ry. Co.

• Court: South Carolina Supreme Court
• Writing for the Court: MCIVER
• Citation: Wilson & Co. v. Atlanta & Charlotte Airline Ry. Co., 16 S.C. 587 (S.C. 1882)
• Decision Date: 15 March 1882
• Docket Number: CASE No. 1172.
• Parties: WILSON & CO. v. ATLANTA AND CHARLOTTE AIRLINE RAILWAY COMPANY.

16 S.C. 587

WILSON & CO.

v.ATLANTA AND CHARLOTTE AIRLINE RAILWAY COMPANY.

CASE No. 1172.

Supreme Court of South Carolina.

Mar. 15th, 1882.

1. An agent having testified positively and of his own knowledge that certain cotton (for the negligent burning of which the action was brought) belonged to the plaintiffs jointly, said upon his cross-examination, “my books show how the cotton was owned.” Held, that objection to the statement of witness, in the absence of his books, as to the ownership of the cotton, was properly overruled.

2. The trial judge could not charge that plaintiffs were not joint owners of the cotton, there being testimony tending to show that they were.

3. In action against a railroad company for the negligent burning of cotton near its track, the judge did not err in refusing to charge “that if the jury find from the evidence that the defendant corporation was provided with the most approved machinery for protection against fire, and said machinery was worked by competent and careful employés, they will find for the defendant.”

4. Motion in the Circuit Court for new trial is the proper proceeding for the correction of an alleged error committed by the jury in the allowance of interest in their verdict.

5. The verdict being for a gross sum as damages, it cannot be set aside as erroneous, even if the amount found was reached in part by an allowance of interest.

Before WALLACE, J., Spartanburg, March, 1880.

This was an action commenced February 5th, 1880, by R. T. Wilson & Co., Gustav Dambman and the Navassa Guano Company against the Atlanta and Charlotte Airline Railway Company. The complaint demanded $2,200 damages for the negligent burning of thirty-three bales of cotton belonging to the plaintiffs at Gaffney City, in Spartanburg county, on November 2d, 1879. The cotton was on a platform belonging to the town, near the railroad track. It had not been delivered to the railway company.

W. J. Duncan, agent for the plaintiffs, testified that plaintiffs jointly owned the cotton; that the burnt bales contained 16,005 pounds of middling, worth at that time ten and a quarter cents per pound, but such cotton had since sold at twelve and three-quarters cents. The fire broke out on top of the cotton within a few minutes after the eastward bound passenger train had left the depot, after a stay of twenty minutes for dinner. The distance of the engine from this platform, whether it emitted sparks or not, and whether parties were at the same time sitting upon these bales smoking cigars, were matters upon which the testimony was conflicting.

Defendant made certain requests to charge, which are correctly stated in the exceptions. Other matters are given in the opinion.

His Honor charged the jury as follows:

In this case there are three plaintiffs suing jointly, and the jury must be satisfied they were joint owners of the cotton alleged to have been burnt. If they were not joint owners they cannot recover, and the verdict must be for the defendant. If you find that they were joint owners, you must next inquire, first, how was it burned? If you find that the agents of defendant did not burn the cotton, then you must find for the defendant. Defendant is liable only in case of negligence. Defendant had the legal right to run its trains over their road. Defendant must have proper equipments on its trains. If trains are properly equipped and fires occur, and that is proved and no more, it would be no negligence, but accident, and defendant would not be liable. Negligence is absence of due care in performing any act. If any act is done in pursuing a right, and injury occur in the absence of due care, the defendant would be liable. If anything is done in pursuance of a right that common prudence forbids, defendant would be liable, because it would be negligence. To make it negligence the defendant must have been doing an act that, under all the circumstances of the particular case, the plain suggestion of prudence would forbid.

Verdict for plaintiffs for $1,686.73.

A motion on the minutes for a new trial was refused, and defendant appealed upon the following exceptions:

1. Because of error in that the Circuit judge erred in overruling the objection of defendant's counsel to the statement of W. J. Duncan as to quantity and ownership of the cotton, when such quantity and ownership was, he testified, shown by his books, the books themselves not being produced.

2. Because the Circuit judge erred in not instructing the jury, as requested by defendant's counsel, that, as a matter of law, Gustav Dambman was not a joint owner with the other plaintiffs in the cotton.

3. Because the Circuit judge erred in not instructing the jury, as requested by defendant's counsel, that, as a matter of law, the Navassa Guano Company was not a joint owner with the other plaintiffs in the cotton.

4. Because the Circuit judge erred in not instructing the jury, as requested by defendant's counsel, that, as a matter of law, from the proof made by the plaintiffs, none of them were joint owners in the cotton.

5. Because the Circuit judge erred in not instructing the jury, as requested, “that if the jury find from the evidence that the defendant corporation was provided with the most approved machinery for protection against fire, and that said machinery was worked by competent and careful employés, they will find for the defendant.”

7. Because of error in that the Circut judge refused the motion for a new trial when the evidence was uncontradicted that the defendant corporation had provided the most improved machinery for the protection against fire, and said machinery was worked by careful, prudent and competent employés.

Messrs. W. E. Earle, D. R. Duncan, and Wells, Orr & Westmoreland, for appellant.

Messrs. Bobo &...