Priester v. Southern Railway Co.

149 S.E. 226, 151 S.C. 433, 1929 S.C. LEXIS 201

• Court: Supreme Court of South Carolina
• Decided: January 2, 1929
• Docket: 12553
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice! Stabue!r.

This action was brought by the plaintiff, W. H. Priester, in August, 1924, to recover damages alleged to have been sustained by him as a result of personal injuries received by his wife, in a collision between an automobile in which they were both riding and of the defendants’ passenger trains at a public crossing, near Valentine, in Hampton County, on July 3, 1921. The action was grounded upon the alleged negligence and recklessness of the defendants in failing to construct and maintain the crossing and the approaches thereto in a proper condition, in failing to keep a proper lookout for traffic over the crossing, and in failing to give the statutory signals. The defendants entered a general denial and also the affirmative pleas of contributory negligence, gross and willful negligence on the part of the plaintiff and his wife, and res acljudicata.

The case was tried before Judge John S. Wilson and a jury in February, 1925. At the close of all the testimony, the defendants made a motion for a directed verdict, which motion was refused. The jury found for the plaintiff in the sum of $10,000, whereupon a motion for a new trial was made and overruled. From the judgment entered on the verdict the defendants appeal to this Court.

It will not be necessary to set out the exceptions verbatim. All questions raised by them will be considered under the following assignments: (1) That the trial Judge erred in refusing to direct a verdict for the defendants on the ground that the testimony showed no actionable negligence on their part; (2) that the trial Judge erred in refusing to direct a verdict for the defendants on the ground that the testimony showed that the collision was caused by the sole negligence of the' plaintiff; (3) that the trial Judge erred in refusing to direct a verdict for the defendants on the ground that the testimony showed that the collision was due to gross contributory negligence on the part of the plaintiff and his wife; (4) that the trial Judg'e erred in refusing to direct a verdict for the defendants on the ground that the issues involved in this case have already been adjudicated and decided in favor of the defendants in a case in the United States District Court; (5) error in refusing to charge certain requests of the defendants. •

The first three assignments have to do with negligence in one form or another, and may be considered together. The testimony is voluminous and tedious, and no good purpose would be served by reviewing it. We have examined it very carefully, and find that there is conflicting evidence as to the facts on which conclusions of negligence on the part of the plaintiff or on the part of the defendants might be based by the jury. The decision as to the facts and as to the inference of negligence to be drawn' therefrom were correctly submitted to the jury.

The fourth assignment cannot be sustained. The action in the United States Court was brought by Mrs. Priester for damages for personal injuries suffered by her in the collision; the present action was brought by her husband for damages, resulting to him from loss of service and companionship and expenses, suffered by him as a result of the injuries to his. wife. It is true that the plaintiff was a party in the Federal Court case, but he was merely a nominal 'party in accordance with the requirement of law. The causes of action in the two cases are entirely different and distinct, and the judgment in favor of the defendants in an action on one is not a bar to an action on the other. On this point the authorities are practically unanimous. There is no merit in the suggestion that the conditions in the present case are so abnormal and extraordinary as to bring plaintiff’s case under a different rule.

Exception 8 assigns error to the trial Judge in refusing to charge the defendants’ third requests as follows:

“I charge you that when an engineer, approaching a road crossing, sees a traveler on a highway slow down or stop his vehicle near the crossing he has a right to suppose that the traveler is going to remain in a place of safety, and the engineer is under no duty to try to stop his engine or bring it under control until he sees that the traveler intends to try to cross in front of the train.”

There is no error here. This would have been a charge on the facts. Irby v. Southern Railway, 92 S. C., 490, 75 S. E., 793; Richardson v. N. W. R. Co., 124 S. C., 314, 117 S. E., 510. In the last named case the Court, quoted with approval :

“The general rule is well known that questions of fact are to be submitted to the jury, and this includes not only cases when the facts are in dispute, but also when the question is as to inference to be drawn from such facts after they have been determined.”

There are several other exceptions. involving refusal to charge certain requests of the defendants. Appellants did not argue these exceptions, but we have carefully examined them, and find them without merit.

We have not considered the fifth and fifteenth exceptions, as they are not properly before us. When the case with exceptions was served upon the respondent, he proposed an amendment to exception 5, which was based on a charge of the Judge. This amendment, changing entirely the meaning of the charge, was accepted by the appellants, who thereupon sought to substitute a new exception 5 for the original exception 5 and to add a new exception, No. 15. The question of allowing these amendments to the exceptions came before the trial Judge in his settlement of the case for appeal. He allowed the new exception 5 and disallowed No. 15. The respondent appealed from this order allowing new exception 5, and the appellants gave notice that upon hearing of the case on appeal they would ask the Supreme Court to consider exceptions 5 and 15 on the ground that they are founded on the merits of the case, and the allowance and consideration of them would'be in furtherance of justice.

This matter presents two questions: (1) The authority of the Circuit Judge to make the amendments; and (2) the request that this Court consider the two new exceptions.

We do not think that the Circuit Judge had any authority to say what the exceptions should or should not contain. He certainly had authority to settle the case, but not the exceptions. This principle is well stated in Crosswell v. Association, 49 S. C., 374, 27 S. E., 388:

“It is true that the proper practice is to furnish the Circuit Judge with a copy of the exceptions, in order that he may be the better enabled to determine what is necessary to go into the ‘case’ as a basis for such exceptions, and what should be left out as not pertinent to the points raised by the exceptions; but we do not understand that the Circuit Judge has any power to determine what the exceptions shall or shall not contain. * * * In view of the well-settled practice of this Court declared in repeated decisions, that no question will be considered here unless raised by some exception, it would be a fearful power to vest in any Circuit Judge to say what should or what should not be incorporated in the exceptions taken for the purposes of an appeal.”

If the appellants1 request that this Court consider exceptions 5 and 15 be taken as a motion to be allowed ■ to incorporate additional exceptions in the case, the motion comes too late. If the appellants desired to incorporate additional exceptions in the case, they should have made timely application to this Court, which would then have considered the motion on its merits. But the motion comes too late when the case has been made up and is ready for hearing in this Court. Burns v. Gower, 34 S. C., 160, 13 S. E., 331; McNamee v. Huckabee, 20 S. C., 190; State v. Scheper, 33 S. C., 562, 11 S. E., 623, 12 S. E., 564, 816.

The judgment of the Circuit Court is affirmed.

Mr. Chief Justice Watts and M1r. Justice Carter concur.