Clayton v. Southern Ry. Co.

96 S.E. 479, 110 S.C. 122, 1918 S.C. LEXIS 40

• Court: Supreme Court of South Carolina
• Decided: July 23, 1918
• Docket: 9996
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Chief Justice Gary.

This is an action for personal injuries, alleged to have been sustained by the plaintiff. The specific allegation of negligence is that an agent of defendant, when plaintiff was alighting-from the train, held out his hand to assist her, but as she reached out to take hold of it he withdrew it and caused her to fall. The defense was a general denial, negligence of plaintiff, and contributory negligence. The jury rendered a verdict in favor of the plaintiff; and the defendant appealed upon exceptions, which will be reported and considered in their regular order.

1 First exception: The question raised by this exception thus arose while the plaintiff was on the stand as a witness : “At this point in her testimony, on cross-examination, the following occurred: ‘Q. Isn’t it a fact, Miss Clayton, that as you started to go down the steps that high heel shoe caught against something on the step, and that tripped you? A. Not until I got overbalanced. When I got overbalanced it did. Q. When you got overbalanced, it caught against something, and you tripped and fell? A. Yes, sir.’ On her examination by her attorney in reply the following occurred: ‘Q. Well, Miss Clayton, can you see how to walk down the steps without your glasses? A. Certainly. Q. Can you read without your glasses? A. Yes, sir. Q. Something has been said by the counsel about your shoes there. What did your shoes have to do with your falling? A. I would have fallen if I had not had on any shoes, I suppose. By Gen. Bonham: Now, if the Court please, we object to the question and object to the answer. It is purely a matter of opinion. Bet her state what occurred. By Mr. Cochran: She has given the facts. By the Court: Well, that is all right, just let it stand right where it is.’ ” (Gen. Bonham excepts.)

The appellant’s attorneys, in their argument, thus state the proposition for which they contend:

“Exception 1 imputes error because the presiding Judge permitted plaintiff, over objection, to say: T would have fallen if I hadn’t had on any shoes, I suppose.’ It is true defendant’s counsel objected on the ground that this was an opinion. As a matter of fact, lie should have said it was mere conjecture. We frankly concede that a witness may give an opinion on a statement of the facts on which the opinion is predicated. True, at folios 23 to 26 she gives a narrative of the occurrence, but nothing therein contained laid the foundation for her answer to this question by her counsel: ‘What did your shoes have to do with your falling? A. I would have fallen if I hadn’t had on any shoes, I suppose.’ We submit that is pure guessing, pure surmise, pure conjecture, and not an opinion.”

The sole ground of objection to the testimony in question vas that it was opinion evidence. The appellant's attorneys, however, correctly concede that it cannot be so regarded, but they undertake to argue that it was erroneously allowed to be introduced, on a ground not interposed as an objection upon the trial of the case. No grounds of objection except those urged upon the trial of the case are properly before this Court for consideration.

2 Second exception: No formal objection was made by the defendant’s attorneys, who merely suggested that it might be inconvenient for the examination to take place in his (Dr. Ashmore’s) office.

The granting of the request on the part of the plaintiff’s attorneys was addressed to the discretion of his Honor, the presiding Judge, whiph it has not been made to appear was erroneously exercised.

3 Third exception: In no point of view can it be successfully contended that the ruling in question was prejudicial to the rights of the appellant.

4 Fourth, fifth, sixth and seventh exceptions: The appellant’s attorneys, in their argument, say: “Exceptions 4, 5, 6 and 7 raise the issue that, whilst the words therein given, in the' charge are in themselves without objection, they become objectionable because they are not coupled with an apt charge on the points of negligence and contributory negligence set up in the defense. Tt is to be admitted that the Judge elsewhere charged the law of negligence. But it is respectfully submitted that that did not cure the harm done.”

The appellant’s attorneys have failed to satisfy this Court that the mere arrangements of the charge, containing correct propositions of law, resulted in prejudicial error.

5 Eighth exception: His Honor, the presiding Judge, charged the jury, in effect, that it was incumbent on the plaintiff to prove the allegations of the complaint by the testimony in order to recover a verdict. Ninth exception: There are no reasonable grounds for supposing that the ruling may have affected the result of the trial.

Affirmed.

Messrs. Justices Hydrick, Watts and Eraser concur. Mr. Justice Gage did not sit.