Bridger v. Asheville & Spartanburg R. R.

The opinion of the court was delivered by Mr. Chief Justice SimpsoN. In this action the plaintiff sought to recover damages for injuries inflicted upon his son, a boy of tender years, by negligence of the defendant corporation, as alleged. The injury complained of was done in North Carolina, County of Henderson, at a turn-table of defendant. The defence, 1st, denied the negligence, and, 2nd, relied on contributory negligence on the part of the child. The verdict was for the defendant, and the plaintiff has appealed upon thirty exceptions. These exceptions, or at least so many of them as raise questions for our consideration, may be grouped under four heads, as follows: 1st. Those that complain of error in the Circuit Judge’s ruling upon the competency of certain testimony offered, embracing exceptions from one to thirteen inclusive. 2nd. Those that complain that his honor refused to charge without qualification certain requests of plaintiff, embracing exceptions 17,18, 19, 20, and 21. 3rd. Those complaining of his honor’s charge and refusal to charge in reference to the application of the law of North Carolina in a case of this kind — exceptions 22, 23, and 26. And 4th, those complaining of his honor’s charge that the age and intelligence of the boy were the tests of his capacity to commit contributory negligence, excluding questions of prudence, childish propensities, and impulses. Under the first group we find the first allegation of error to be, that his honor allowed one Dr. Allen to testify “that he thought the boy did not act prudently in going on the turn-table.” In turning to the Brief, folio 21, it will be seen that his honor excluded this testimony. Upon its being offered the plaintiff objected, and after discussion the objection was sustained. The 2nd allegation is, that his honor erroneously excluded the testimony of one Crossby as to the judgment and discretion of the boy, especially as to danger. His honor excluded this testimony upon the ground that the only pertinent inquiry upon this subject, was as to the capacity and intelligence of the boy, his capacity to know and understand the danger, and not as to his prudence or recklessness in encountering it. We think his honor was right in his ruling here, for reasons to be given under the — 460 — discussion of the 4th and last group of exceptions, which involve substantially the same principle. The 3rd allegation of error is the same in substance as the 2nd. The 4th complains that his honor excluded the testimony of Mrs. McConnell of former accidents upon the turn-table. This testimony was excluded unless knowledge of said accidents was first brought home to the defendant, which was not done. One important rule of evidence is, that testimony to be competent must be pertinent to the issue. The issue here was negligence. We do not see how former accidents happening at this turn-table could be pertinent to said issue, in the absence of all knowledge thereof by the defendant. The 5th objects to the exclusion of Charles C. Haskell’s testimony as to the monthly earnings of the plaintiff. The plaintiff at the time his'son was injured was in the employment of the Henry Hill Publishing Company as agent for the sale of books, and the testimony of Haskell was intended to show how much he earned monthly at this business, the plaintiff claiming that he should recover from the defendant the value of his son’s services, the value of his own services as a nurse to his son, and his monthly earnings as agent of the publishing company, which he alleged that he lost in consequence of being compelled to nurse and attend to his son while injured, or at least the difference between what he could have earned and the amount of $400, which it seems he paid some one to attend to his agency. This latter item his honor ruled out, and, therefore, excluded the testimony of Haskell upon this point, saying however: “That if the plaintiff could recover for his loss of time in his agency, it could not be speculative and uncertain wages, but must be contract wages,” of which there was no evidence in the case. We think the general rule in cases of this kind, is that of master and servant, which would include necessary expenses of medical attention, nursing, &c., and the services of the injured party. His honor seemed inclined to extend this rule here in view of the fact that it was proper that the father should become the nurse of his injured boy, and if contract monthly wages had been lost by the father, under his honor’s ruling they might have been proved, but speculative and altogether uncertain earnings he — 461 — excluded. We think his honor was as liberal to the plaintiff as the law allowed. The 6th is the same in substance as the 5th. 7th. There had been a previous action on account of this injury in behalf of the boy, the plaintiff here, his father, being his guardian ad litem, which resulted in a verdict of $5,000 for the plaintiff.1 The record in said case was offered here by the plaintiff; it was excluded, and this is the ground of the 7th allegation of error. The rule of evidence supra which requires that the testimony offered in a case should be pertinent to the issue, we think excluded this record. It was res inter alios acta, and had no application or pertinency to the case in hand, and, therefore, his honor’s ruling was correct. The 8th complains of the exclusion of certain questions to witness Grambling tending to show enmity between him and the plaintiff. We do not find in the Brief that these questions -were excluded; on the contrary, Grambling seems to have testified fully, and without objection. The 9th complains of the admission of testimony from Divine, Bass, and Bernard as to customs of well i-egulated railroads in reference to locking and guarding their turn tables. His honor admitted this testimony, saying in substance at the same time, that while it was no defence to say that other railroads did the same thing, inasmuch as railroads have no right to make rules of negligence, yet the question being one of negligence, this fact might be an element in that question, especially in this case where the plaintiff had undertaken to prove that one railroad company did in fact lock its turn-table. And in reply to this testimony he held it competent. With this qualification, there was no error. The 10th, 11th, 12th, and 13th complain that his honor refused to permit the plaintiff to testify whether he thought it possible that his children could have visited the turn-table without his knowledge — whether his children had mentioned to him of any such visit — w'hen was the first time he had heard of such visit, and whether, if they had visited said turn-table before the evening of the accident, he or his wife would have known it. These questions were properly excluded, as they mostly called for opinions, — 462 — hearsay, and inferences, none of which, under the rules of evidence, were admissible from the witness. The testimony of witnesses, as a general rule, is confined to facts, with some exceptions, not applicable, however, here. The 14th is the same in substance as the 2nd and 8rd, supra. This brings us to the second group of exceptions, in which complaint is made that his honor charged the requests of plaintiff made in several forms: “That children of tender years could only be held responsible for contributory negligence according to their age, capacity, and development,” as good law, unless the jury came to the conclusion that the law of North Carolina fixed an age at which they were to be held responsible as adults. The appellant objects to the qualification and proviso as to the North Carolina law. In other words, these exceptions complain that his honor held that the North Carolina law was applicable to the case, and if that law had modified the common law, it should con- . trol the jury. This question is the same as that involved in the /third group of exceptions. So that, without stating the exceptions seriatim in either of these groups, we will now consider this single question upon which they all depend. His honor held, that in one sense all law in North Carolina, as well as in this State, was statute law, inasmuch as the body of the common law had been adopted by statute in both; but independent of this, that the decisions of the highest tribunal in North Carolina constituted the law there, just as much as if enacted by the legislature, and therefore it made no difference in this case how it had been declared law in North Carolina that children of a certain age should be regarded legally capable of contributory negligence, yet if such a law had been announced, either by decisions in the court of last resort or by act of legislation, it was the law of the case then before the court, although it might be contrary to law of South Carolina.1 We think his honor’s ruling upon this subject was correct. The cause of action arose in North Carolina. The injury was inflicted there, and if the parties had remained in that State and brought action there, they would have been compelled to stand or fall by the law there. — 463 — And we cannot see upon principle bow stepping over the line could give the plaintiff a new and altogether enlarged cause of action — in fact, a cause of action which he did not have before, and, therefore, which he could not have enforced in the tribunals having jurisdiction of the matter at its origin. All this is upon the assumption that the injured boy was over the age fixed by the law of North Carolina, and that he contributed to his own injury. In such a case the plaintiff would have had no cause of action in North Carolina, and having no cause in North Carolina where the injury was inflicted, he could have none here. See cases of Atlanta & Charlotte Airline R. R. Co. v. Tanner, 68 Ga., 384; Atchison, Topeka & Santa Fe R. R. Co. v. Moore, 29 Kan., 642. His honor charged generally, that the test of the boy’s capacity for contributory negligence was his age, his intelligence, his ability to know his surroundings, and the danger of what he was doing with the turn-table, and if the jury found as matter of fact that that boy had sufficient intelligence, &c., &c., to know and understand these things, all of which was for them, that then he would assume to charge that such one was subject to the rules of ordinary care and diligence, and failing to exercise the same would defeat the right of the plaintiff to recover here, if he contributed to his injury. This general charge is made the cause of the exceptions embraced in the 4th group, supra. The injured boy does not seem to have been so young as to have required the judge to say that he could not contribute to his injury. Nor was he of that age where the presumption would necessarily arise in the absence of testimony to the contrary that he could. Under these circumstances his honor left the question very properly to the jury, resting it upon the intelligence and capacity of the boy, as was done in the former case of Edgar Bridger against this defendant — provided, however, that the North Carolina law did not establish a different principle by fixing a certain age, which the judge also left to the jury, with a very strong intimation that it had not, of which, of course, the appellant has no cause of complaint. We find no warrant of law which would have authorized the judge to extend the principle so as to have allowed testimony as to the caution, prudence, recklesness, or impetuosity of .the — 464 — boy, as an excuse for contributory negligence, notwithstanding his intelligence and capacity should have taught him better. We do not think the cases cited and relied on by appellant controvert this principle. The 15th exception complains that his honor, on the motion for new trial, refused to allow testimony to show that a juror had formed an opinion before hearing the case. We think his honor’s ruling here is sustained by the principles laid down in the cases referred to by the respondent, to wit: McCarty v. McCarty, 4 Rich., 594, 47 A. D., 585; Pulaski & Co. v. Ward & Co., 2 Id., 122; and Josey v. Railroad Co., 12 Id., 136. It is the judgment of this court, that the judgment of the Circuit Court be affirmed. Footnotes [1] See 25 A C., 24. [1] Defendant introduced in evidence the case of Manly v. Railroad Company, as reported in 74 N. C., at page 655. — Reporter.