Dodd v. Spartanburg Railway, Gas & Electric Co. , 95 S.C. 9 ( 1913 )

May 28, 1913. The opinion of the Court was delivered by The allegations of the complaint, material to the questions presented by the exceptions, are as follows:

"That on or about the ____ day of October, A.D. 1911, the plaintiff, with other school children, were on their way from school, and it became necessary to cross the tracks of the defendant company to reach plaintiff's home in said city, and that while plaintiff was on said track, the defendant caused its trolley car to approach the crossing and the place, where plaintiff was standing at an unlawfully high rate of speed and without notifying the plaintiff, although she was in full view of the motorman running said car, wilfully, wantonly, recklessly, negligently, and in utter disregard of the rights of plaintiff, caused the said car to run into and collide with the body of plaintiff, knocking her violently to the ground, bruising her body, filling her with intense fright, and shocking her nervous system to her great damage in the sum of five thousand dollars."

The defendant denied the allegations of negligence and recklessness, and set up the defense of contributory negligence and assumption of risk.

The jury rendered a verdict in favor of the plaintiff, for two hundred dollars actual damages, and for two hundred dollars punitive damages.

The defendant appealed upon exceptions, which will be reported.

First Exception. The record shows that the question raised by this exception thus arose, during the examination of W.C. Gash, a witness for the plaintiff:

By John Gary Evans, Esq.: "Would it be possible for anyone, standing where those children were, with a freight train running on that track, to hear that little gong, if a locomotive was pulling the freight train? I could hear the train going down rumbling. What kind of train was that? Just a freight train.

Judge Gary: "I think it is a matter of common knowledge that all freight trains are noisy.

"Will you state, under the circumstances there, whether it would have been possible, under those conditions, for those children to have heard the gong?

Judge Gary: "I rule that having given the facts to the jury, he can then express his opinion as to whether or not it could have been heard." Objection by C.P. Sanders, Esq., on the ground of opinion evidence.

"With a freight train going down right by there, and those children standing there, looking at the freight train, do you think they could have heard the gong? I don't think they could have heard it."

The sole objection to the testimony was on the ground, that it was opinion evidence. The exception, however, assigns error in "that this was altogether a matter of opinion, and allowed the witness to give his opinion, on one of the material points of the case." Waiving the objection that the first ground was too general, and that the second ground is not properly before this Court for consideration, as it was not urged upon the trial in the Circuit Court, the exception can not, however, be sustained.

The surroundings could not be reproduced, so as to afford the jury the same opportunity of forming a correct opinion, as when viewed by the witness. The ruling of his Honor, the presiding Judge, is fully sustained by the case of Easler v. Ry., 59 S.C. 311.

There is still another reason, why the exception can not be sustained, to wit: when a similar question was propounded to the witness, it was answered without objection.

The next question that will be determined is, whether the plaintiff, who was an infant under seven years of age, at the time of the injury, was subject to the defense of contributory negligence.

In the case of Tucker v. Buffalo Mills, 76 S.C. (cited with approval in Goodwyn v. Columbia Mills Co., 80 S.C. 349), the Court held, that an infant between seven and fourteen years of age, is presumed to be incapable of committing contributory negligence or trespass, and that it was incumbent on the party alleging such negligence or trespass, to overcome the presumption of incapacity; and that if the facts were susceptible of only one inference, it was to be drawn by the Court, otherwise by the jury. In that case the Court said: "The charge was based upon the well known fact, in reference to the capacity of infants to commit crime, a rule founded in deep knowledge and experience, with reference to the power of infants to discern between right and wrong, and has the support of a number of cases in other jurisdictions." The rule as to the capacity of a child to commit crime is thus stated in 1 Bishop on Criminal Law, section 368: "the period of life at which a capacity for crime commences, is not susceptible of being established by an exact rule, which shall operate justly in every possible case. But on the whole, justice seems best promoted by the existence of some rule. Therefore, at the common law, a child under seven years, is conclusively presumed incapable of committing any crime. Between seven and fourteen, the law also deems the child incapable; but only prima facie so; and evidence may be received to show a criminal capacity. The question is whether there was a guilty knowledge of wrongdoing. Over fourteen, infants, like all others, are prima facie capable; and he who would set up their incapacity must prove it."

This rule is recognized in 16 Enc. of Law 312, and 22 Cyc. 623-6.

The next question for consideration is, whether there was any testimony tending to show, that the plaintiff was entitled to punitive damages.

Without going into details, it is sufficient to state that there was a signboard at the crossing upon which was written: "Cars Stop Here;" this crossing, was used by the school children; it was at the junction of three streets; conductors had been instructed to stop their cars at that crossing; witnesses testified that the crossing was very dangerous. It, therefore, can not be successfully contended that there was no testimony tending to show, that the plaintiff was entitled to punitive damages.

When the other questions presented by the exceptions are considered in connection with the entire charge, it will be seen that they can not be sustained.

Judgment affirmed.