KITCHENS v. MELTON

MR. JUSTICE WATTS.

This was an action by the plaintiff against the defendants for damages for the alleged negligence of defendants in causing the death of her intestate on February 22, 1912. The cause was heard by Judge Smith and a jury at the Spring term of Court, 1915, for Cherokee county, and resulted in a verdict for the defendants. A motion for a new trial was made by the plaintiff, which was refused. After entry of judgment plaintiff appeals, and by seven exceptions imputes error on the part of his Honor. At the hearing of the case plaintiff's counsel abandoned the fifth exception.

The exceptions are subdivided and impute error to his Honor in excluding certain testimony offered by the plaintiff against the Gaffney Manufacturing Company, and in instructing the jury to disregard it in so far as it affected the Gaffney Manufacturing Company. The evidence shows that the plaintiff's intestate died as a result of the bursting of a large steam pipe in the plant of the defendant company a few minutes after six o'clock on the morning of February 22, 1912. This is an admitted fact in the case. It is in evidence that the deceased was buried on February 24, two days after his death. Mrs. Kitchens and Lidie Kitchens testified that one night while he lay a corpse, the defendant, Melton, was at her house, and, in substance, said that he was sorry for the accident, "and that if it would have held up a few days longer it would not have occurred, because he had a piece ordered to fill the place, and he would have had it in a few days, and that it was delayed. He had a bill of it, but it was delayed on the road by some purpose."

It was insisted by plaintiff's counsel that this was competent evidence against both defendants as showing knowledge by the company of the alleged defective condition of the pipe. His Honor held it incompetent as against the company and so instructed the jury.

Was his Honor in error in so holding? It could not have been admitted as a part of the res gestae. The time and circumstances do not bring it within that doctrine, the admitted fact is that the deceased died about six o'clock on the morning of February 22, 1912, and was buried February 24, and one night while he was a corpse, Melton called, and while there made the alleged statement; as far as the record goes he called of his own volition and not as a representative of the company, and in no way authorized by them or connected with them. At the time he called the deceased had been dead, in any view of it, a number of hours, and neither the time nor circumstances are such as would permit the Court to hold it was a part of the res gestae. The alleged admission was at least twelve hours after the accident and possibly longer. Counsel for the appellant earnestly and strenuously urges that this statement should have been admitted when they show knowledge of the conditions prior to, or at the time of, the accident, or a part of the res gestae and relies on the case of Young v. Railway, 75 S.C. 197, 55 S.E. 225. This case is not on all fours with the present case, in the Young case one of the statements was made by the section master before the accident, and the second statement immediately after the accident, and the fact of the cleaver being in bad condition in the Young case was not in dispute, and the statement was made by the section master, was admitted as a part of the res gestae, as it was proven that the section master was thirty, forty, fifty or one hundred steps from Young when he was injured, and statement was made by section master as soon after the accident to the eye of the employee as he got easy. In this case the fact of the alleged defect is disputed.

We cannot see that the exclusion of the evidence was erroneous or prejudicial to the plaintiff, and this exception is overruled.

The next exceptions are to the charge of his Honor. A careful reading of his Honor's charge, as a whole, fails to show that there is any reversible error, and from the record we cannot conclude that there are any errors that the plaintiff can complain of. He left the facts for the jury, he did not in any manner invade the province of the jury by intimating his opinion of the evidence or any inference to be drawn therefrom, his charge was marked by its clearness and force; and he charged the legal propositions correctly, and gave the jury the law of the case, the jury could not have been mislead by the charge to the prejudice of the plaintiff.

The plaintiff's other exceptions relate to the refusal of the motion for new trial. There was no abuse of discretion on the part of the Judge that appears in the record.

All exceptions are overruled. Judgment affirmed.