Yarborough v. Columbia Ry., Gas & Electric Co.

• Decision Date: 10 February 1915
• Docket Number: 8994.
• Citation: 84 S.E. 308,100 S.C. 33
• Parties: YARBOROUGH v. COLUMBIA RY., GAS & ELECTRIC CO.
• Court: South Carolina Supreme Court

84 S.E. 308

100 S.C. 33

YARBOROUGH v. COLUMBIA RY., GAS & ELECTRIC CO.

No. 8994.

Supreme Court of South Carolina

February 10, 1915

Appeal from Common Pleas Circuit Court of Richland County; W. A Holman, Special Judge.

Action by Clyde Yarborough against the Columbia Railway, Gas & Electric Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Elliott & Herbert, of Columbia, for appellant.

J. B McLauchlin, of Columbia, for respondent.

FRASER J.

The appellant thus states his case:

"This suit was brought by Miss Clyde Yarborough on the 24th day of July, 1914, to recover $10,000 damages on account of injuries received by her as a result of the alleged negligent and willful conduct of the defendant in causing a car from which she was alighting to jerk forward. Plaintiff testified that, as defendant's car was nearing the stopping point at the intersection of College and Main streets, she stepped to the running board, and that the car started forward with a jerk and threw her to the street, by which her arm was sprained and her knee bruised. The testimony of defendant's motorman and conductor, and passengers, King, Smith, Howell, Bundrick, and Pope, was to the effect that plaintiff had attempted to step from a moving car and had fallen."

"The jury found a verdict for plaintiff for $4,000 which his honor refused to disturb on motion for a new trial."

Argument:

"As the case was proceeding to trial, the court excused from the panel W. L. Kelly and C. P. Heise, jurors, who stood up when his honor inquired whether or not any jurors were related to the plaintiff or in the employ of defendant. Mr. Kelly stated he had a small rent account for the street railway company; that he was a rent collector. Mr. Heise that he was contracting for advertising space, and that he had a contract with the company. His affidavit shows that his contract was with the Record Publishing Company, with which Company he was informed Mr. E. W. Robertson, president of Columbia Railway, Gas & Electric Company, was connected as an officer or stockholder. Counsel for defendant objected to these two jurors being excused from the panel. His honor ruled it was a matter for his discretion, and that the fact that they had stood up showed them to be not indifferent, and he would excuse them from the panel. The jurors were not sworn on their voir dire."

Exception 1:

"This exception charges error in the action of his honor in excusing the jurors and in the ruling of his honor that the matter was for his discretion, and the fact that said jurors stood up when questioned showed them to be not indifferent. It is provided in the Civil Code (volume 1, § 4045) as follows: 'The court shall, on motion of either party in suit, examine, on oath, any person who is called as a juror therein, to know whether he is related to either party, or has any interest in the cause, or has expressed or formed any opinion, or is sensible of any bias or prejudice therein, and the party objecting to the juror may introduce any other competent evidence in support of the objection. If it appears to the court that the juror is not indifferent in the cause, he shall be placed aside as to the trial of that cause, and another shall be called.' "

It will be observed that the statute says "on motion of either party." The record does not show that either party made a motion to examine the jurors on oath. The jurors did not consider themselves entirely unconnected with the appellant, and it was within his honor's discretion to exclude them. The law is well stated in Tucker v. Buffalo Mills, 76 S.C. 541-542, 57 S.E. 626, 627 (121 Am. St. Rep. 957).

"When the case was called on circuit, plaintiff requested that all jurors be asked whether or not they were employés or stockholders in either the Union or Buffalo Cotton Mills. The defendant objected solely on the ground that the two mills were distinct corporations, having one president. It was ascertained that three jurors were employed by the cotton mills named and two by the Union Mills store. While we do not regard this fact as ground for legal disqualification of a juror, still the circuit court has very large powers as to the conduct of jury trials, including a discretion to exclude a juror for this cause, if the circumstances are such as, in the judgment of the court, would afford any reasonable ground for apprehension of unfairness, and his ruling will not be reversed, except for abuse of discretion, which does not appear in this case. State v. Wyse, 32 S.C. 45, 10 S.E. 612. Appellant contends that the circuit court should have examined the jurors on their voir dire, and cites State v. Williams, 31 S.C. 238, 9 S.E. 853, but no request for such examination was made, and the ground of objection stated shows that there was no issue as to facts, but presented merely a legal question as to whether the jurors were disqualified on an admitted state of facts."

This exception is overruled.

2. Exception 2:

"In declining to grant defendant's motion for a nonsuit at the close of the plaintiff's testimony on the ground that said testimony showed that plaintiff contributed to her injury as a proximate cause by her own negligence, the error being that the only inference properly deducible from the evidence was that plaintiff contributed to her injury as a proximate cause by her own negligence, and his honor should have granted a nonsuit for this reason."

Appellant in his argument says:

"It has never been held in South Carolina that under all circumstances it is negligence for a passenger to endeavor to board or alight from a moving car, but such conduct, under some circumstances, may be negligence as a matter of law."

There was testimony that the car was moving very slowly, and the circumstances were for the jury . This exception is overruled.

3. Exception 3:

"Because his honor erred in refusing defendant's fifth request to charge as follows: 'If a passenger on a car leaves his or her seat while the car is in motion and

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