McMaster v. Southern Railway Co.

115 S.E. 631, 122 S.C. 375, 1923 S.C. LEXIS 15

Opinions

The opinion of the Court was delivered by

Mr. CitiEE Justice Gary.

The following statement of facts appears in the argument of the appellant’s attorneys :

These two actions arise out of the same occurrence, to wit: a collision between a train and an automobile.at the College Street crossing in Winnsboro, the automobile being owned by McMaster, Sr., and being driven by McMaster, Jr. Both actions were for actual and punitive damages, the one for personal injuries and the other for the damage done to the automobile, and the pleadings in each case are practically the same. The plaintiffs allege a willful and wanton and negligent violation of the signaling statute, and of the ordinance of the Town limiting the rate of speed of trains to six miles per hour, and a careless and negligent failure to keep 'a proper lookout, permitting buildings to be erected near its track which obstructed the view, failure to keep a watchman or flagman at the .crossing, and negligent maintenance of the crossing.

The defendant denied these allegations, and alleged that the proximate cause of the injuries was the negligence and gross negligence of the driver of the car in approaching the crossing at too fast a rate of speed, and in failing to take any precautions whatever, although the statutory signals had been given, and the train was in plain view, or that such negligence and gross negligence contributed to the injuries as a proximate cause.

The two cases were tried together before the same jury, which returned a verdict at $1,000.00 punitive damages for McMaster, Jr., and $500.00 actual damages for McMaster, Sr. At the conclusion of the testimony the defendant made a motion for a directed verdict upon the grounds set out in the case. This motion was refused, and defendant has appealed from this refusal, and for alleged error in the charge to the jury, and in the admission of testimony as to the condition of the crossing.

The exceptions will be reported.

First exception. This exception cannot be sustained, for the reason that the appellant’s attorneys have failed to satisfy this Court that there was prejudicial error.

Second, third, fourth, fifth, and sixth exceptions. .When the testimony is considered in its entirety, it will readily be seen that all these exceptions must be overruled.

Seventh and eighth exceptions. The parts of the charge quoted in these exceptions must be considered in connection with the entire charge, and, when so considered, it will be seen that there was no prejudicial error.

Affirmed.

Mr. Justices Watts and Fraser concur.