stated by the master at the sale. The property was again advertised by the master at the risk of Cudd and sold on the 6th day of January, 1913, under the terms of the former decree for $7,051 and at an additional cost of $10.30. The master then petitioned this Court for a rule to show cause against Cudd why he should not be required to pay into the master's hands $549 difference in the price and $10.30 additional cost, with interest on same from January 6, 1913, and interest on $7,600 from November 4, 1912, to January 6, 1913. Mr. Cudd made return that, when he was bidding on the property in November he asked the master if he was selling 143 feet, and that rough plat exhibited at said sale represented that the lot was 143 feet deep; that he subsequently ascertained that the original plat, which had been made by Stribling, surveyor, had been misplaced at the sale, and that said plat showed by a dotted line across the front end of said lot that eight feet had been cut off next to the sidewalk for the purpose of widening the street; that he understood that he was buying 143 feet back or west of said line, and as a matter of fact there was only 135 feet back of said line. At the hearing before me the master testified orally that he did state to Mr. Cudd that he was selling 143 feet, and he also stated that he sold the lot as a whole, and not by front foot or side foot.

It appears to my satisfaction that the heirs and distributees of J. B. Wertz did own 143 feet in depth from the edge of the sidewalk, and that the master sold the same. It has not been made to appear that any party having the right so to do has ever given the city the right to the eightfoot strip of land, nor has the city ever acquired same by condemnation. This being the case, the master was selling, and would have conveyed to the purchaser, 143 feet as advertised and as stated by him at the sale. The necessary conclusion follows that Mr. Cudd must pay the difference in the prices, which is $549, and also $10.30 additional cost on the second sale, together with interest on both items from

112

Opinion of the Court.

[100 S. C. January 6, 1913, and also legal interest on $7,600, the first bid, from November 4, 1912, to January 6, 1913, and also the costs of this proceeding, and it is so ordered. Let the master have the right to enter up judgment against R. E. Cudd for said sums.

Messrs. John Gary Evans and R. B. Pasley, for appellant, submit: The rule of caveat emptor does not apply at judicial sales of property for partition; the officer making the sale is agent of the parties to the action, and his representations are binding upon them: 86 S. C. 226; 58 S. C. 477. Even when the misrepresentation was innocently made, as was in this case, and when it further appears that he relied not upon his own investigation and judgment, but upon such misrepresentation, and that it was the principal inducement to the purchase, he is entitled in an action brought against him for the purchase money, to relief which, according to the circumstances, consists in a pro tanto abatement of the purchase price or in a total recession of the contract: 86 S. C. 228; 2 Hill 657; 41 S. C. 508. The Courts will afford reasonable opportunity for the investigation of the titles to property sold under its order: 86 S. C. 226; 69 S. C. 263.

Messrs. Johnson, Nash, Lyles & Daniel, for respondent.

March 1, 1915.

The opinion of the Court was delivered by MR. Justice WATTS.

For the reasons set out in the order of his Honor, Judge Prince, Circuit Judge, it is the judgment of this Court that the judgment of the Circuit Court be affirmed.

KELLY v. COLUMBIA RY., GAS & ELECTRIC CO.

1. TRIAL-INSTRUCTION ON FACTS.-In an action for the wrongful killing of plaintiff's intestate, whether or not defendant's operation of its street car over a switch at a greater rate of speed than four miles an hour, in violation of its own rule, was negligence, was an issue for the jury, so that instruction that it was negligence per se was erroneous as an instruction on the facts.

2. STREET RAILROADS-NEGLIGENCE-VIOLATION OF SPEED ORDINANCE.A street railroad's violation of an ordinance, fixing a rate of speed over switches, is negligence per se.

Before PRINCE, J., Columbia, March, 1914. Reversed.

Action by Maggie E. Kelly, as administratrix of the estate of Robert L. Kelly, deceased, against the Columbia Railway, Gas & Electric Company. Judgment for plaintiff, and defendant appeals.

Messrs. Elliott & Herbert, for appellant, submit: It was error to charge that a breach of the master's rules by servant was negligence, per se: 85 S. C. 455.

Messrs. Spigner, Cobb & Verner, for respondent, submit: Violation of company's rules was negligence, per se: 96 S. C. 228; 82 S. C. 542; 85 S. C. 471; 89 S. C. 527; 90 S. C. 42; 89 S. C. 15; Labatt, Master and Servant, sec. 365; 68 S. C. 55; 46 S. E. 525; 73 S. C. 481; 53 S. E. 639; 95 S. C. 370; 10 A. & E. Ann. Cas. 151, and notes; 1 L. R. A. 364; 92 S. C. 72; 88 S. C. 7; 90 S. C. 308.

March 1, 1915.

The opinion of the Court was delivered by MR. JUSTICE WATTS.

FOOTNOTE. As to violation by servant of rule adopted by railway company for the protection of the public, as evidence of negligence toward a member of the public, see note in 8 L. R. A. (N. S.) 1063.

This was an action by the plaintiff against the defendant for $25,000 damages, actual and punitive, for the alleged wanton, reckless, negligent, and wrongful killing of her son, and, after issue joined, the cause was tried before his Honor, Judge Prince, and a jury, at the March term of the Court for Richland county and resulted in a verdict for the plaintiff in the sum of $7,000. The defendant appeals and asks reversal upon nine exceptions.

The sixth exception is: In charging the jury that, if the defendant operated its car over a switch at a greater rate of speed than four miles an hour, it was guilty of negli

gence per se. The error being that such a charge 1 was an instruction on the facts, since it took from

the jury the issue of whether or not such a rate of speed over a switch was negligence, and it instructed them that a breach of the company's rules by the servants of the company is negligence per se.

This exception must be sustained. His Honor, in the settlement of the case for appeal, establishes the fact that he did so charge. In justice to his Honor he was under the impression that the city ordinance of the city of Columbia prohibited the running of cars at a greater rate of speed than four miles an hour; whereas, it was a rule of the company. Mr. Verner called his attention to the mistake, and no doubt his Honor intended, and would have corrected, his mistake, but his mind was evidently diverted at this time.

His Honor would have been correct in his statement as to its being negligence per se had the ordinance of the city. been violated. Dyson v. Railway, 83 S. C. 354, 65 S. E.

344; Lindler v. Railway, 84 S. C. 536, 66 S. E. 995; 2 Whaley v. Ostendorff, 90 S. C. 282, 73 S. E. 186. But inasmuch as it was only a rule of the company, it was competent evidence to go to the jury as evidence of negligence and to be considered by them for what it was worth.

In the case of Stone v. Railway, 96 S. C. 228, 80 S. E. 433, it was held that a breach of rules by a servant of the company, made for his protection, would prevent a recovery under the facts disclosed in that case, and it follows that any violation of rules by representative of the master, or by master, would be competent to submit to the jury for their consideration as evidence of negligence, but it would not be negligence per se. His Honor was in error in charging as he did, as complained of in this exception, and as there must be a reversal of judgment, and new trial granted, it is unnecessary to consider the other exceptions.

Judgment reversed, and new trial granted.

9015

SMITH v. UNION-BUFFALO MILLS CO.

(84 S. E. 422.)

MASTER AND SERVANT. WITNESSES. EVIDENCE. APPEAL AND ERROR. 1. WITNESSES-EXAMINATION-"LEADING QUESTION.”—A question, which does not suggest to the witness an answer either in the affirmative or negative, is not a "leading question."

2. APPEAL AND ERROR-DISCRETION OF TRIAL COURT-LEADING QUESTION.-Allowance of leading questions rest in the discretion of the trial Court, and its action will not be disturbed unless the discretion has been abused to the prejudice of the party complaining.

3. APPEAL AND ERROR-RULINGS ON EVIDENCE-OBJECTIONS-SPECIFICATION OF GROUNDS.-Where the record does not show any specific ground of objection urged below to the admission of evidence or any specific ground on which the Court rested its ruling, the ruling is not reviewable.

4. APPEAL AND ERROR-HARMLESS ERROR-ERRONEOUS ADMISSION OF EVIDENCE.-A party cannot complain of the admission of evidence to prove facts shown by his subsequent cross-examination of wit

nesses.

5. APPEAL AND ERROR-TRIAL-ORDER OF PROOF-DISCRETION OF COURT.— The admission of testimony in reply rests largely in the discretion of the trial Court, and the Court on appeal will not interfere unless there has been an erroneous exercise of discretion.