73 S.E. 879 | S.C. | 1912
March 2, 1912. The opinion of the Court was delivered by This is an action for damages, alleged to have been sustained by plaintiff, through the negligence of the defendant.
The allegations of the complaint material to the questions involved, are as follows:
"That on or about March 14, 1905, plaintiff, Mrs. Johann Ladshaw, was a passenger on defendant's train going from Spartanburg to Pacolet, sitting about three seats from the front door of the car, and while in her seat, through the negligence of the defendant, a cinder came through said door and struck her right eye, inbedding itself therein, to her great expense, suffering and injury, which she believes *468 and alleges will be permanent, to her damage in the sum of two thousand dollars.
"That said injury was directly due to, and caused by, the negligence of defendant, in the said door having unnecessarily and carelessly been left open, by the employee of defendant, to wit, its flagman, brakeman or trainman on said train, who threw it open and left it open, while said train was in motion and cinders flying, at a point near East Spartanburg; and by defendant's failure to equip, and keep in reasonably good repair, the engine, with proper and suitable appliances, for the prevention of the escape of such cinder, and by its negligent operation of the engine at said place, by rendering such escape possible, in the then condition of said engine, in not being so provided with such appliances."
The defendant denied the allegations of negligence.
At the close of all the testimony, the defendant's attorneys made a motion for the direction of a verdict, on the ground that the evidence discloses no actionable negligence on the part of the defendant, but the motion was refused.
The jury rendered a verdict in favor of the plaintiff, for six hundred and thirty-three ($633.00) dollars, and the defendant appealed upon exceptions, which will be reported.
First Exception. The complaint specifies two particulars, in which the defendant was negligent: (1) In carelessly leaving the door open, through which a cinder was blown into the plaintiff's eye, and (2) failure to equip and keep in reasonably good repair, the engine, with proper and suitable appliances, to prevent the escape of such cinder. If there was testimony tending to sustain either of said specifications of negligence, then there was no error in refusing to direct a verdict.
S.D.O. Kelly, a witness for the defendant, who was flagman on the train, when the plaintiff was injured, thus testified, on cross-examination: "Is it not a rule of your company, that these vestibule doors must be closed while *469 the train is in motion, rule 314, 414, isn't that a rule of your company? They must be closed on leaving a station, and kept closed until they arrive." There was testimony tending to show a violation of this rule, and that the failure to observe it, was the direct and proximate cause of the plaintiff's injury.
Second Exception. When that portion of the charge set out, in the exception, is considered in connection with the entire charge, it will be seen that it is free from error.
Third, Fourth and Fifth Exceptions. These exceptions are predicated upon the theory, that the complaint only alleges negligence, in a single particular, and are disposed of, by what was said, in discussing the first exception.
Sixth Exception. The syllabus in the case of Sheppard v.Lark, 2 Bail. 576, thus correctly states the rule therein announced: "The Court will not consider a motion for a new trial, grounded upon affidavits, that the jury had settled the amount of damages, in an action for a tort, by striking an average of the several sums suggested by each juror. To entertain such a motion, would lead to the assumption of a power, to inquire into the process of reasoning, by which the jury arrived at their verdict, and violate the discretion confided to juries by the law and Constitution. The Court will not take cognizance of what transpires in the jury room, with a view to control the verdict, unless the jury have been guilty of misconduct so gross, and violations of law so obviously manifest, as to subject them to the animadversion of the Court."
Judgment affirmed. *470
