Opinion
9757
July 13, 1917.
Before PEURIFOY, J., Spartanburg, November, 1916. Reversed.
Action by Mrs. S.A. Hughes against the South Carolina Light, Power Railway Company and another. From an order setting aside the verdict and granting new trial, plaintiff appeals.
Messrs. Gwynn Hannon, for appellant, cite: As to ground for setting aside verdict: 75 S.C. 326 and 517; 100 S.C. 283. Issues: 75 S.C. 293.
Messrs. Sanders DePass, for respondent.
July 13, 1917. The opinion of the Court was delivered by
The appeal in this case involves but one point. It is from an order of Judge Peurifoy granting a new trial nisi. The ground that his Honor based his order on was: "The Court holds there was no evidence of wilfulness or wantonness." He did not grant the order on any grounds that are within the Court's discretion, as, for instance, that the verdict rendered was not approved by the Court. Had he done so, an appeal could not have been taken; but the order appealed from is a legal one, the Court holding that the verdict was entirely without evidence to support it.
We have studied the evidence with care, and have reached the conclusion that there is evidence to support the verdict, and that his Honor was correct in the first instance, when he refused the motion for a nonsuit and later for a directed verdict in favor of the defendant, and submitted the case to the jury, and that he was in error in setting aside the verdict and granting a new trial nisi on the grounds he based his order on. A careful reading of the evidence establishes the fact that there was evidence on the issues involved, though conflicting, whereby the jury could draw the inference from all the evidence and circumstances in the case that there was a conscious advertent failure on the part of the defendants, its agents and servants, to observe due care. As was said by the Supreme Court of our sister State of North Carolina in the case of Ingle v. Light Power Co. (N.C.), 90 S.E. 953, and reaffirmed in Smith v. Charlotte Electric Ry. Co., 92 S.E. 384:
"The motorman of a street car must be more diligent and careful for the safety of pedestrians than a locomotive engineer, * * * the locomotive has exclusive right of way, and is traveling on its own property, where, as a rule, pedestrians have no right to be, unless crossing a track, or by recognized custom are using the track with the implied permission of the company, while the street railways are using the streets, to which the public have the same right."
Under the evidence in the case, more than one inference as to wantonness or wilfulness could be drawn, and that was a question for the jury to determine, and the jury found for the plaintiff, and gave a verdict for both actual and punitive damages.
The exception is sustained, and judgment reversed.
MR. CHIEF JUSTICE GARY did not participate in the consideration of this case.