Rowe v. Southern Ry.

¶1The opinion of the Court was delivered by

¶2This is an action, for damages, alleged to have been sustained by the plaintiff, through the wrongful acts of the defendant.

¶3There was a former appeal herein. (85 S. C. 23, 66 S. E. 1056.)

¶4The complaint contains two causes of action, one based on negligence, and the other on wamtonness.

¶5On the former trial, his Honor the presiding Judge, ruled, that there was no testimony tending to show wantonness, on the part of the defendant; and, withdrew that cause of action, from the consideration of the jury. The jury then rendered a verdict, in favor of the defendant, and the plaintiff appealed to this Court, whose judgment was as follows: “It is the judgment of this Court that the judgment of the Circuit Court be reversed, and the case remanded for a new trial.”

¶6On the second trial of the case, in the Circuit Court, the jury rendered a verdict in favor of the plaintiff, for the sum of $357.60, and the defendant appealed, upon exceptions, which will be reported.

¶71 The first question that will be considered, is, whether there was error, on the part of his Honor the presiding Judge, in construing the judgment of the Supreme Court. The record contains the following statement:

“This is a motion for a new trial made by the defendant, upon the following grounds :

.“ ‘Because, it is respectfully submitted, no issue should have been submitted to the jury, except the issue as to1 the *223liability of the defendant, under the alleged cause ol action, for wilfulness and wantonness’ ….

“When this motion was made, my attention was called to the fact, that Special Judge Featherstone, had withdrawn the cause of action, as to the wilfulness' and wantonness of the defendant, from the jury-, and had only submitted to them, the issue as to negligence of the defendant, and that the appeal only questioned the correctness of the rulings of his Honor, in withdrawing the cause of action alleging wilfulness and wantonness, on the part of the defendant. The record of the former trial in this case, is not before me, but I have the opinion of the Supreme Court granting a new trial. The language of that opinion is as follows: Tt is the judgment of this Court that the judgment of the Circuit Court be reversed, and the case remanded for a new trial.’ It will be seen that there is no limitation or restriction upon this order, directing a new trial; and the plaintiff was entitled under the decision of the Supreme Court, to a trial de novo, upon both the issues of negligence and wantonness, raised by the pleadings. I therefore refuse the motion so far as this ground is concerned.”

¶8The former appeal, was from the judgment entered upon the verdict, and not merely from the ruling of his Honor the presiding Judge, in withdrawing from the jury, the cause of action for punitive damages. The motion for a new trial, on this ground, was therefore properly overruled, as the judgment was reversed.

¶92The next question, is whether the presiding Judge erred in charging the jury, that the ordinance of the city of Spartanburg, relative to the speed of trains within its limits, would be a valid ordinance, unless it amounted to a spoliation of defendant’s property. We deem it only necessary to state, that the authorities cited by ihe respondent’s attorney, clearly show, that the exceptions raising this question, cannot be sustained.

¶10Affirmed.