Bunch v. Charleston & Western Carolina Ry. Co. , 91 S.C. 139 ( 1912 )

The opinion of the Court was delivered by

Mr. Justice Fraser.

This is an action for damages for pesonal injuries. The plaintiff, Mrs. Bunch, purchased a ticket and paid for the same, from Augusta, Georgia, to Clark’s Hill, South Carolina. Plaintiff entered the car as a passenger and took her seat. She wanted the window raised and says that the porter raised it for her. Very soon after the train started, the sash came down and caught her arm. The plaintiff claims that her arm is seriously injured, and that she has lost the use of the arm, and claims five thousand dollars damages.

. The defendant denies all the allegations of the complaint, except the incorporation of the defendant, that its lines extended from Augusta, Ga., to' Clark’s Hill, S. C.; that the plaintiff bought and paid for her ticket and was a passenger on said train. The defendant plead contributory negligence and asked that the complaint .be dismissed with costs.

The judgment and verdict was for two thousand dollars.

The errors alleged cover (1) denial of the right to cross-examination. (2) Charge of the Judge. (3) Remarks o>f counsel.

Appellant has consolidated his exceptions, and we will adopt his consolidation.

1 1. Cross-Examination.—We cannot adopt one view of appellant, that the Judge ruled that the cross-examination is confined to the subject covered by the examination in chief. The rule is too well settled to the contrary, for this Court to so construe his Honor’s ruling unless the ruling admitted of no other construction.

'The plaintiff was introducing evidence in reply to the evidence of the defendant, so that the question was—“Is the testimony in reply to the evidence of the defendant?”

While it is true that the scope of the cross-examination is largely ini the discretion of the trial Judge, still, when the question is as1 to the relevancy of the evidence, or whether it is in reply or no, it becomes a matter of law upon which this Court ought to pass-. The plaintiff had alleged that the trouble was physical. The defendant answered' in evidence, the trouble is mental. The defendant then undertook to prove something about hysteria, which might involve mental trouble and was directly in the line of the reply.

In this view this exception is sustained.

2 2. The appellant’s second grouping is as follows: “(a) In charging the jury that they could consider certain allegation© of the complaint, although not supported by testimony.” It would be well nigh impossible to prove by direct evidence that there had been no inspection, as a matter of fact. The law does not require direct proof of those things which can rarely be proved. There was testimony that almost immediately after leaving the terminal in Augusta, the latch was discovered to be in a broken condition. Was the latch defective? Was it defective in Augusta? Would an inspection have disclosed the defect? These were questions for the jury. If the jury concluded that the defect existed and an inspection' would have lead to the discovery of the defect, then the jury might conclude that no inspection was made. His Honor could not take this question from the jury.

There was no error in this and this specification is overruled.

3 (b) That injury to a passenger, through any instrumentality or agency of the company, in law presumes that the company is careless and negligent.

In Steele v. Railway, 55 S. C. 392, 33 S. E. 509, this Court says: “By all the authorities proof of injury under such circumstances would raise a presumption of negligence: (That is. where a passenger was injured through any instrumentality of the railroad company) casting upon the carrier the burden of explaining that the accident happened from a cause for which it is not responsible, or that it was not due to its negligence.”

There is no error here, and this specification is overruled.

(c) Charging on the facts, in violation of the Constitution.

4 In considering this specification, reference is made to defendant-appellant’s third request to charge, which was as follows:

“In estimating damages, you take into consideration any physical injury and mental anguish and things of that sort, and inasmuch as the suit is brought to recover actual damages she is not only entitled to recover for past suffering, injury and pain, but also, if she is permanently disabled, any suffering which she may have in the future.”

This was merely a statement as toi what actual damages included and was not a charge on the facts, particularly when the oft-repeated statement was made: “Now, if she was-guilty of carelessness and negligence herself, and that carelessness and negligence on her part in any manner contributed toward the direct and proximate cause of her injury, then she would not be entitled to recover any damages at all.”

There is no violation of the constitutional prohibition here.

(d) Instructing the jury that the law imposed on the railroad company the very highest degree of care to see that its passengers were transported in safety.

5 In the case of Steele v. Southern Railway Company, supra, this Court says: “Whatever the mode of conveyance, whether by passenger, mixed or freight train, a carrier is liable for any negligence, resulting in injuiy to the passenger, and in that sense the law requires the highest degree of care in all cases, but in applying this rule the jury should take notice of the particular mode of conveyance.”

. This w-as a -passenger train, and the statement was not too strong. -

3. This assignment of error refers to the remarks of counsel in addressing the jury.

6 The. record- does not show that the attention of the Court was called- to the objectionable remarks at the time. -Where counsel wishes to object to. remarks which he deems improper, 'he must object at the time. .Failure to object at the time is a waiver.

Crompton v. U. S. 138, U. S. 361. “It is the duty of defendant’s counsel at once to call the attention of the Court to the objectionable remarks and request its interposition, and in case of refusal, to note an exception.”

This seems to be the general rule. The record does not show that any objection was made during the- argument, and it is too late to do so afterwards.

This specification of error is overruled.

The judgment of this Court is, that the judgment of the Circuit Court be .reversed for the reason herein stated, and the cause remanded to- the Circuit Court for a new trial.

■Mr. Justice Woods concurs. Mr. Justice Hydrick concurs in the result. Mr. Justice Watts disqualiñed.