Mishoe v. Atlantic Coast Line Railroad Co.

133 S.E. 704, 135 S.C. 316, 1926 S.C. LEXIS 93

Opinions

The opinion of the Court was delivered by

Mr. Justice Marion.

My concurrence in the opinion of the Court, delivered by Mr. Justice Fraser, on the first appeal (124 S. C., 195; 117 S. E.., 217), was limited to a concurrence in the view that there was reversible error in the charge of the Circuit Judge in the particular considered in that opinion. I then stated that I was “not prepared to agree that the verdict should have been directed for the defendant.”

While, as suggested by Mr. Acting Justice Purdy, the testimony tending to rebut any presumption or inference of negligence on the part of the defendant was “fuller” on this trial, I am unable tO' resist the conclusion that under the settled law of this jurisdiction the question of whether such presumption or inference was completely rebutted was for the jury. Ingram v. Davis, 131 S. C., 326; 125 S. E., 920. Mulligan v. Southern Railway, 84 S. C., 171, 176, 177; 65 S. E., 1040. Nor under our decisions do I think it may consistently be held as a matter of law that the damages alleged, and which there was some evidence tending to establish, were too remote to afford a basis of recovery. See Pickens v. R. Co., 54 S. C., 511; 32 S. E., 567. Berley v. Seaboard Air Line Railway, 83 S. C., 411; 65 S. E., 456.

Three members of the Court having concurred in this opinion, the judgment of the Circuit Court is affirmed.

Mr. Chiee Justice Gary and Mr. Associate Justice Watts concur.