Veronee v. Charleston Consol. Ry. & Lighting Co.

149 S.E. 753, 152 S.C. 178, 1929 S.C. LEXIS 227

• Court: Supreme Court of South Carolina
• Decided: August 13, 1929
• Docket: 12718
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Acting Justice C. T. Graydon.

A trial of the issues in this case was had before his Honor, Judge Townsend, and a jury. The action was one in tort for alleged injuries suffered by the plaintiff, while employed as a workman with the defendant company. A verdict was rendered in favor of the plaintiff for the sum of $35,000, the total amount asked for in the complaint.

The plaintiff, John H. Veronee, was employed as a machinist by the defendant in a power house in the city of Charleston. The plaintiff was injured when he came in contact with an appliance known as “bus bars,” which consists of three copper wires or bars carrying a high voltage of electric current to a machine in the power house known as a “larry.” The larry is an appliance used to carry coal from the bunkers and dump it into the fire boxes of the boilers. It is operated very much on the same principle as the street car, except that the street car is operated by a grounded current from overhead wires through the rails, and the larry is run by a current which passes through three “bus bars,” which are located over the south rail. The current passes from the “bus bars” to the motor and back to the “bus bars,” and at no time is there any current passing through the rails, which merely constitute the track on which the larry runs. The “bus bars” are located over the south rail, about 9j4 feet from the north rail.

On the date in question Veronee, the plaintiff, and one Reeves, the chief machinist, went up to the larry, which is situated about 40 or 50 -feet from the first floor of the power house, to place a new key for one which was loose on the northeast wheel, which wheel runs on the north rail, about 9 feet from the “bus bars.” Veronee assisted in making the key, and went up to place the key in the wheel, requesting that the current be cut off. He was told by Reeves, however, that it was unnecessary to cut the current off. Veronee testified that, while he and Reeves were straddling the north rail, Reeves told him to -go' to the south side of the larry and see if the bearing on the southeast wheel was hot from binding, and to look at the motor gears, which were located between the rails. He testified that before he was injured he had never been in the upper part of the building, where the “bus bars” were located, except once, to wit, on September 15/ two days before the accident. He further testified that he had heard a man named Fitzgerald being warned about standing on the “bus bars” two days before, when the current was cut off to allow Veronee and others to work on the south side of the larry. Reeves denied that he fold Veronee to go to the south side of the larry. He stated, further, that he first knew of Veronee’s injury through a noise which attracted his attention on the south side of the larry.

Veronee was severely and painfully burned by reason of the accident, and lost his little finger and the metacarpal bone of his left hand. He was unconscious for several hours after the accident, and received several other burns about his body, in addition to the one which destroyed his finger and the bone of his left hand. For several days after the accident his. tongue was mangled and bruised, his lip was blistered, and he had a cut about his chin on which he had been knocked with a hammer to separate him from the “bus bars.” As a result of this he had to be fed by a nurse. Fie was 35 days in the hospital, and returned for an operation on his hand, and remained confined in the hospital about 8 days at this later time. The above facts are detailed for the reason that both the • liability of the defendant and the amount of damages awarded are contested.

There are 22 exceptions, but the appellant has grouped them into eight distinct points, which will be considered in the order outlined by appellant.

Exceptions 1 and 22 allege that the Court committed reversible error in allowing the jurors to sit in the case, over defendant’s objection, when they were not registered electors, as required by Article 5, § 22, of the Constitution of 1895, in that they had, admittedly, not re-registered in 1928. It is further admitted that all were registered when drawn in December, 1927.

The part of this section which is pertinent to this issue is as follows: “Qualifications of Jurors. Each juror must be a qualified elector under the provisions of this Constitution, between the ages of twenty-one and sixty-five years and of good moral character.”

Article 2, § 8, provides : “The General Assembly shall provide by law for the registration of all qualified electors. * * * ” Further on in the same section there is a proviso that at the first registration under this Constitution, and until the 1st of January, 1898, the registration shall be conducted by a board of three discreet persons in each county providing for their appointment.

Article 2, § 4, provided, among other things, as qualifications for suffrage, “registration, which shall pro,vide for the enrollment of every elector once in ten years, and also an enrollment during each and every year of every elector not previously registered under the provisions of this article.”

Volume 3 of the Code of 1922, § 211, provides: “An enrollment of persons, not previously registered, and entitled to registration, shall be made annually by the board of registration until the year nineteen hundred and eight, when an enrollment of all electors shall be made, and thereafter there shall be the same annual enrollment of electors and the same general enrollment of electors every tenth year, as above provided.”

It is evident from the above provisions of the Constitution and statute law that a new regstration is required every tenth year, but nowhere in the Constitution or in the statute is provision made for the time of the year at which this registration shall take place. All of these sections must be construed together, to> give proper force to each, and only under a strained construction could it be held that it was necessary for every elector in the State to re-register on the 1st day of January of the tenth year in order to perform jury duty, provided he was otherwise qualified.

The Code provides, in Section 548, subdivision 2 of the Code of Civil Procedure of 1922, Vol. 1, that the County Auditor, Treasurer, and Clerk of Court of Common Pleas shall in the month of December of each year prepare a list of qualified electors in accordance with the provisions of the Constitution to' serve as jurors. It would be impossible for this section of the code to be complied with under appellant’s contention, and the jury box prepared, if re-registration was necessary on the first day every tenth year before one was qualified for jury duty. If this were the case, no Courts could be held during the months of January, February, and March of every tenth year, and there would be a constant confusion as to the drawing of juries and the administration of justice throughout the entire State. The correct view with reference to this matter is that the elector has the right to re-register at any time during the tenth year, and is eligible for jury duty, provided otherwise qualified. Any other construction than this would deprive the elector between January 1, 1928, and the time at which he could re-register, of his right of citizenship' and the Courts of qualified jurors.

The law does not deal in impossibilities, and the construction which appellant would have placed upon the constitutional and statutory provisions would make it an absolute impossibility to try any case during the spring of every tenth year, and would eliminate from service jurors drawn in accordance with the mandate of the law. The act directing the selection of the jury in December of each year is mandatory, and when construed with the sections of the Constitution and the other acts applicable to-the jury system forms no basis for a real conflict. Jurors drawn from the box of qualified electors in December of each year are registered electors, who are entitled- to serve during the following year, provided, however, there is no disqualification in other respects. This exception is, therefore, overruled.

Exceptions 2, 3, 4, 5, 6, 7, 9, 16, 17, 18, and 19 allege error on the part of the circuit Judge in refusing to grant a nonsuit or directed verdict in the cause. The doctrine in South Carolina is well settled that a person before assuming a risk, must not only know, but appreciate the danger in question. Barnhill v. Cherokee Manufacturing Co., 112 S. C., 541, 100 S. E., 151. A careful examination of the facts and circumstances surrounding this case shows to the Court that there was no error in the refusal to grant a nonsuit or directed verdict. There was ample evidence that the place was dangerous, and that Veronee was ordered into this place of danger by a superior, without either knowledge or realization of this danger. Bize v. V.-C. Co., 96 S. C., 425, 81 S. E., 10; Green v. Sou. Ry., 72 S. C., 398, 52 S. E., 45; Cannon v. Lockhart Mills, 101 S. C., 59, 85 S. E., 233; Bunch v. American Cigar Co., 126 S. C., 324, 119 S. E., 828; Harwell v. Columbia Mills, 112 S. C., 177, 98 S. E., 324. See dissenting opinion of Mr. Justice Cothran in Bradford v. Woolworth Co., 141 S. C., 453, 140 S. E., 105, where the rule is clearly stated as to the duty of the master to- furnish to the servant a safe place to work.

The eighth exception imputes error because the circuit Judge permitted the plaintiff, Veronee, to testify concerning a certain offer in compromise. This developed on the cross-examination of the plaintiff. Defendant’s counsel was attempting to show that the defendant had offered Veronee his position after the accident. During this line of examination, Veronee told also about an offer of $1,500 accompanying the tender of the position. The circuit Judge immediately ordered the jury to' disregard this matter.

In the re-direct, however, it will be noted that the same matter was gone into without objection. It would be dangerous to hold that it would constitute a ground for reversal, upon such statements being elicited by counsel for the party offering the compromise. In this case it is evident that the matter appeared as a result of an effort on the part of the defendant’s counsel to show that the damages were less than claimed by the plaintiff, and that the defendant’s attitude was fair to the plaintiff. If this Court lays down the rule that such testimony as this requires a reversal of the cause in every instance, the effort might be made to introduce such testimony in order to- force a new trial. If the. effort is made by the party who was offered the compromise, in order to- show some liability on the part of the defendant, it is clearly erroneous. It should also- be excluded on proper motion in any event, by either party, for the reason that the law favors compromise, and will allow neither party to be prejudiced by an offer. But if the offer of compromise is brought out in testimony by the defendant, and the Judge promptly rules the same out, with proper instructions to the jury, such conduct should not cause a new trial, nor the withdrawal of the case from the jury.

Exception 10 alleges error on the part of the Judge in refusing to charge a certain proposition of law in the exact words which appellant handed the request up. This request is'based on the language used by Justice Woods in the case of Stephens v. Railway, 82 S. C., 549, 64 S. E., 601, 604, in which Mr. Justice Woods uses the words “for in doing so- he would be guilty of contributory negligence.” Judge Townsend in charging this request changed the word “for” to- “if.” We think that this was proper, for the reason that it left to- the jury the question of the negligence of the plaintiff, and whether or not that negligence was contributory negligence. A person may stupidly obey an order of a superior, and still be not guilty of contributory negligence, for that particular act may not be the proximate cause of the injury. There is still another reason why this exception cannot be sustained. The verdict was for the full amount asked, and the complaint asked for both actual and punitive damages. The jury evidently gave punitive damages, and thereby found that the defendant was also guilty of willfulness, which finding as a matter of law eliminates the defense of contributory negligence. This exception is therefore overruled.

The next group of exceptions, numbered 11 to 15, complain of error on the part of the circuit Judge in charging the jury that the plaintiff assumed the risks which he knew, or should have known of, unless he was an employee of a street railway corporation, in which event the doctrine of assumption of risk would not apply to the case. Under Article 9, § 15, of the Constitution of 1895, the defense of assumption of risk is not available against employees of a railroad corporation, and this provision is extended in Volume 3, Code of 1922, § 5038, to include also employees of street railways.

In the case of Becker v. Coast Line, 128 S. C., 138, 121 S. E., 476, this Court has held that an employee of a railroad repair shop would be entitled to' the benefit of this section. It is admitted that Veronee worked in a power house which furnished the power for a street railway system, and that at the instant time he was working on appliances which acually fed the boilers generating • this power. The circuit Judge merely left it to the jury to determine whether or not Veronee was an employee who was entitled to the benefit of the section above referred to. We think that this was proper under the circumstances; if anything, it was more favorable to appellant than appellant was entitled to under the law. This exception is therefore overruled.

Exception 20 complains of error because a juror, Arthur R. West, showed prejudice and bias throughout the case. We find no substantiation in the record for this exception. The proper motion for appellant’s counsel to make in instances of manifest bias, or prejudice on the part of the juror would have been a motion for a mistrial at the time, as one cannot speculate upon the verdict after discovering a cause for mistrial. The circuit Judge, who was present in the atmosphere of the case, could have easily decided whether or not appellant was entitled to a mistrial. Nowhere in the record is there evidence of any objection by appellant’s counsel with regard to the conduct of West. There is an old proverb that “one cannot have the cake and eat it, too,” and if appellant’s counsel desired to' avail himself of the right to question the actions of the juror West, he should have stated so- in open court, and made an exception thereon. He possibly took the other horn of the dileriima, and decided that he would go through with the case and risk the juror West knowing that he showed prejudice. He lost in this selection, and there is no basis for sustaining this exception.

Exception 21 complains that the amount of the verdiet is so excessive and out of proportion to the injury as to be obviously the result of unbridled prejudice and passion, and should therefore be set aside. This question was fully discussed by the Court in the recent casé of Duncan v. Record Publishing Company, 145 S. C., 196, 143 S. E., 31 and the principles therein announced are clearly stated and conclusive with regard to the question here raised. The circuit Judge in both the Duncan case and the case at bar heard the evidence and refused á new trial. In both cases the facts were disputed, and the full amount asked for was given by the jmy. The injuries to the respondent were severe, serious, and permanent. In addition to actual dam■ages, punitive damages were included in the verdict. This exception is therefore overruled.

All exceptions are overruled, and the judgment is affirmed.

Messrs. Justices BlEase, Stabler and Carter concur.