Kramer v. Greenville, Spartanburg & Anderson Railway Co.

March 17, 1913. The opinion of the Court was delivered by These two actions were tried on Circuit and in this Court together, and were actions for damages. The complaints allege both a negligent and wilful injury and demand actual and punitive damages. The defendant moved for a nonsuit and a direction of a verdict as to wilfulness and its consequent punitive damages, which was refused.

From this refusal and from a request to charge, which was also refused, the defendant appeals and seeks a reversal of the judgment.

The complaints allege, among other things, that the plaintiffs were riding together in a buggy on the streets of Anderson and while attempting to cross defendant's track at a public crossing, the horse which they were driving "balked" while the buggy was on the track of the defendant. That they used every effort to get the horse off of the track, but that before they succeeded in getting the horse away from this position on the track, the car of the defendant ran upon them and injured them and broke the buggy. That they were in plain view of those in charge of the car in ample time to allow them to stop, if they had been running at a reasonable rate of speed. That the ordinances of the city of Anderson forbade the cars to run at a rate exceeding twelve miles an hour in the city, but that the car which struck plaintiff's buggy was running at a rate far exceeding twelve miles an hour. That the injury was caused by the running of the cars in negligent, wilful and reckless disregard of the ordinances of the city. The motorman estimated the rate of speed at ten or twelve miles an hour. One of the defendant's witnesses estimated the rate of speed at about fifteen miles an hour and the plaintiff, B.F. Kramer, at a grater rate still. There was no denial of the ordinance.

1. At what rate of speed was the car running? This was a question for the jury. If the jury came to the conclusion that the car was running at an unlawful rate, and that the proximate cause of the injury was that by reason of the unlawful rate the motorman could not stop in time to prevent the injury, then the jury might find punitive damages, unless there was evidence that from some unavoidable cause he had lost control of the car. There was no suggestion of this sort in the case.

Did those in charge of the car intend to run at a greater speed than twelve miles and hour? That was a question for the jury, and, if the jury came to the conclusion that the proximate cause of the injury was an intentional violation of law, then punitive damages would follow.

In the State v. McIntosh, 39 S.C. 97, 17 S.E. 446, this Court approved a charge in which the Circuit Judge charged the jury, "Malice is the deliberate and well formed purpose to do the unlawful act."

The exceptions that complain of error in refusing a nonsuit and the direction of a verdict are overruled.

2. The only other question argued in this Court is as follows: "The Judge declined to charge the following proposition: ``The Courts do not require that the engineer of a railroad shall be such an expert in psychology as to be able to read the mind of a traveler approaching a railway crossing, or to be able to foretell that he will not exercise common, ordinary precautions for his own safety.'"

This exception must be overruled. It was not pertinent to any issue in the case. Engineers are not required to be expert mind readers, but there is nothing in the case to show, nor has it been suggested in argument, that the powers of an expert were required. There is no question but that the plaintiffs earnestly desired, and were using all the means they could think of, to get away from the track and out of harm's way.

The remaining exceptions, being omitted from the argument, are deemed abandoned.

The judgment of this Court is that the judgment appealed from is affirmed.

MESSRS. JUSTICES WOODS and HYDRICK concur in theresult.