Hankinson v. Charlotte &c. R. R.

Citations

• 41 S.C. 1
• 19 S.E. 206
• 1894 S.C. LEXIS 83

Syllabus

<p>1. Plaintiff’s Capacity — Issue—Evidence.—The plaintiff’s capacity to sue may be put in issue only by a special denial thereof, or by demurrer in proper cases; but where, under a general denial, the plaintiff undertakes to prove his capacity to sue, this testimony is subject to the same objections as evidence upon other questions, and may be explained and replied to in like manner.</p> <p>2. Grant of Letters of Administration — Proof.—Under the terms of the statute (Gen. Stat., $ 2182), a certified copy of letters of administration is sufficient proof of the judgment of the Probate Court, and the entire record cannot be called for; but the adverse party may put such record in evidence for the purpose of showing a want of jurisdiction.</p> <p>3. Ibid. — Ibid.—Jurisdiction.—In action brought by an administrator, the record of the Probate Court in the matter of his appointment may be introduced for the purpose of showing by an inspection of the record that the Probate Court had no jurisdiction, and that, therefore, the grant was void; but parol evidence of facts not appearing in the record, would be inadmissible in this collateral proceeding.</p> <p>4. Negligence — Charging Jdries. — Facts not made negligence by statute, cannot be held by the trial judge to constitute negligence, or contributory negligence, in any case. His duty is to define negligence, and leave it to the jury to say what facts will fill the definition.</p> <p>5. Ibid. — Drunkenness.—Where a man is killed on the track by a moving railroad train, his intoxication at the time should be considered in passing upon the question of his contributory negligence; and' also in determining the negligence of the railroad company, if their employees on the train knew of his condition.</p> <p>6. Railroads — Travelled Place. — A path across a railroad track used by the public for over twenty years, with the knowledge and acquiescence of the railroad company, but without any adverse assertion of a legal right, doe