120 S.E. 381 | S.C. | 1923
December 4, 1923. The opinion of the Court was delivered by Action for damages on account of personal injuries sustained by plaintiff in a collision with a street car operated by the defendant company in the Town of Mount Pleasant. From a judgment for the plaintiff in the sum of $9,500, the defendant appeals.
Appellant's first contention (Exceptions 1 to 6, inclusive), is that the trial Court committed error of law in refusing defendant's motions for a nonsuit and for a directed verdict, based upon the ground (1) that there was no evidence tending to establish actionable negligence on the part of the defendant; and (2) that the evidence was open to no other reasonable inference than that the plaintiff was guilty of contributory negligence. *450
There was evidence tending to establish that the plaintiff, a lad 13 years of age, was struck in the daytime by a street car while standing on defendant's car track in one of the streets of Mt. Pleasant, at a point in plain view of the approaching motorman for a distance of several hundred feet; that the plaintiff was standing sideways to the approaching street car, facing the sidewalk, where there were some colored boys with "wagons," who had tried to fight him, and that he did not see the car; that the ordinance of the town limited the speed of cars at this point to 15 miles per hour, and required motormen to give "due notice" to foot passengers, to the end that collisions be avoided; that the car was running 25 to 30 miles per hour; that no signal of the car's approach was heard by the injured boy and by another witness, who was in position to hear such signal, if given; that when brakes were applied the car was within 10 feet of the boy; that the motorman wore heavy glasses and bore a bad reputation for recklessness and carelessness.
As a general rule, it is the duty of the motorman of a street car, upon seeing a pedestrian on the track or dangerously near to it, to give warning of the approach of the car by sounding a gong or bell. 25 R.C. L., 1243, § 107. The town ordinance reinforced that duty by legislative mandate, and in addition limited the speed of cars to 15 miles per hour. In that the evidence tended to establish a violation of the ordinance, there was evidence of conduct which constituted negligence per se. Dyson v.Railway,
Neither could the motions have been properly granted upon the ground that contributory negligence was established as a matter of law. Under the well-established rule in this State there is a prima facie
presumption that an infant between the ages of 7 and 14 is incapable of committing contributory negligence. Tuckerv. Buffalo Mills,
Appellant's second point (Exception 7), is directed to assignment of error in the refusal of the Circuit Judge to grant a new trial on the ground that the verdict was excessive. The moving ground was one addressed to the sound discretion of the trial Judge, and the record affords no basis for attributing to him an abuse of *452
that discretion. Southerland v. Davis (S.C.)
The third contention (Exception 8), is that the Circuit Judge, after charging that the burden was on the defendant to prove that the plaintiff, under the age of 14 years, "was capable of contributory negligence," erred in using this language:
"If they have proved that to your satisfaction, and his negligence was the proximate cause of the injury, then * * * he cannot recover," etc.
It is argued that the effect of the expression "to your satisfaction," as thus used, was to impose upon defendant the burden of proving facts to the satisfaction of the jury, when the law requires no more than that they be established by the preponderance of the evidence. We think the objection is patently hypercritical. The weight of the evidence is for the jury, and all facts found by them must of necessity be established to their "satisfaction." The language used was immediately preceded by a clear instruction to the effect that "the defendant, setting up contributory negligence against this boy, must show it to you by the greater weight of the evidence," etc., and in no view does it appear that the jury could have been misled to the defendant's prejudice.
The appellant's fourth contention, Tenth Exception is that the presiding Judge erred in excluding from the panel two jurors who were employees of the Consolidated Railway Lighting Company of Charleston, S.C. on the ground that the Consolidated Company held mortgages over the property of the defendant company, and that because of the mortgages the two companies were practically one. The ruling is challenged upon the theory that the Judge's action was predicated upon the erroneous view that the jurors were legally disqualified, and upon the further ground that the Court's action tended to identify the defendant with a larger and stronger corporation to *453
the defendant's prejudice. It does not appear that the Judge held that the jurors' connection with the mortgagee corporation amounted to a legal disqualification. If so, it would be no sufficient ground for impeaching his conclusion, since the matter for decision was wholly within the discretionary power of the Circuit Judge, if there were any circumstances which, in his judgment, would afford reasonable ground for apprehension of unfairness or bias. There was ample evidential basis of the Court's ruling, and the assignment of error cannot be sustained. Tuckerv. Buffalo Cotton Mills,
The only remaining contention (Eleventh Exception), is that reversible error was committed in excluding testimony offered by defendant as to remarks made to the plaintiff by his father a few minutes after the accident. The defendant's witness, Hartman, was asked what was said by the plaintiff's father, who was not at the scene of the accident, and could have seen nothing of the manner of its occurrence, when the injured boy was brought to the father's residence, some distance away from the point of collision, about three minutes after the boy was hurt. The contention is that the father's remarks were admissible as a part of the res gestae. Conceding that the circumstances of their utterance were such as to indicate the requisite degree of spontaneity, how such declarations of a stranger to the transaction which was the subject of the investigation in progress could have constituted a part of the res gestae is not apparent. The res gestae or transactions here in question were the collision and the conditions under which it actually occurred. While, as has been said by Chief Justice Beasley (Hunter v. State,
All exceptions are overruled, and the judgment of the Circuit Court is affirmed.