65 S.E. 268

ACKERMAN v. ATLANTIC COAST LINE R.R. CO.

7261Supreme Court of South Carolina.
July 24, 1909.

Before PRINCE, J., Colleton, Fall term, 1908. Affirmed.

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Action by C.K. Ackerman against Atlantic Coast Line Railroad Co. From judgment for plaintiff, defendant appeals.

Messrs. T. Moultrie Mordecai, J.E. Peurifoy an Simeon Hyde for appellant.

Messrs. Padgett Lemacks and J.M. Walker, contra.

July 24, 1909. The opinion of the Court was delivered by

MR. JUSTICE GARY.

This case was heard in connection with the case of Ackerman Reeves v. Atlantic Coast Line R.R. Co., in which the opinion has just been filed.

The appellant’s attorneys admitted that the two cases involved practically the same questions.

The judgment was affirmed in the other case, and, for the reasons therein stated, the judgment in this case is affirmed.

MR. JUSTICE WOODS, concurring:

The evidence in this case was substantially the same as in the case of Ackerman Reeves.

As stated in the dissenting opinion in that case, I think there was no evidence of a wilful or wanton obstruction of the river. In this case, however, the record furnishes no basis for dissent on that ground. The motion for the direction of a verdict was general, and not for a direction that there could be no recovery of punitive damages. In addition to this, the amount of the verdict does not appear, and it may have been so small as to admit of no other inference than that punitive damages were not included. Hence, I concur in overruling all the exceptions.

MR. JUSTICE HYDRICK concurring:

The record does not show that there was any motion for nonsuit, or for direction of verdict, or that there was any request to charge as

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to the cause of action for punitive damages, as required by Rule 77 of the Circuit Court. Hence, this Court will not consider that question. Besides, in this case there was no testimony (as there was in the case of Ackerman Reeves) tending to show that it was necessary to obstruct the stream by driving the piles in it to strengthen the bridge.

THE CHIEF JUSTICE did not sit in this case.