Renno v. Seaboard Air Line Ry.
Decision Date | 11 April 1922 |
Docket Number | 10867. |
Citation | 112 S.E. 439,120 S.C. 7 |
Parties | RENNO v. SEABOARD AIR LINE RY. ET AL. |
Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Laurens County; Ernest Moore, Judge.
Action by W. H. Renno, administrator of the estate of Henry Renno deceased, against the Seaboard Air Line Railway and Walker D Hines, Director General of Railroads. Judgment for plaintiff against the Director General, and that defendant appeals. Affirmed.
Defendant's exceptions were as follows:
The defendant Walker D. Hines, Director General of Railroads appeals to the Supreme Court of South Carolina from the order of his honor, Ernest Moore, presiding judge, in overruling his motion for a directed verdict in his favor made at the conclusion of all the testimony on the trial of this cause and from his order refusing defendant's motion for new trial, and from the judgment entered on the verdict herein upon the following grounds of appeal and exceptions to wit:
(1) Because his honor erred in overruling the defendant's motion for a directed verdict in his favor at the conclusion of all the testimony, on the ground that no actionable negligence of the defendant had been alleged or established, and he should have so held.
(2) Because his honor erred in not holding on defendant's motion for a directed verdict at the conclusion of all the testimony that the testimony failed entirely to show that the defendant owed plaintiff's intestate any duty whatsoever under the facts and circumstances of the case, and his honor should have so held.
(3) Because his honor erred in not holding on defendant's motion to direct a verdict in his favor at the conclusion of the testimony that the entire testimony failed to show that the defendant had notice or knowledge that its right of way was made use of and resorted to by children of tender years as a place of amusement, whereas he should have so held.
(4) Because his honor erred in not holding on a directed verdict in his favor that plaintiff had failed to establish by the testimony that the defendant had created, erected, constructed, or maintained "an attractive nuisance," whereas, he should have held that the doctrine or law of attractive nuisance was not applicable to the facts of this case.
(5) Because his honor erred in not holding on defendant's motion for a directed verdict in his favor at the conclusion of the testimony that the "wash hole" or pool of water in the branch in which plaintiff's intestate was drowned was not located on or near or in close proximity to a street, public highway, park, or other public place, and that it was not in an incorporated town or village, or in close proximity to or near by a thickly populated community, whereas he should have so held.
(6) Because his honor erred in refusing the defendant's motion for a directed verdict in his favor at the conclusion of all the testimony, on the ground that the wash hole or pool of water was located in the country, in a sparsely settled community, at a considerable distance from the corporate limits of the city of Clinton, and from the community of the Lydia Mill village, and partly within the limits of a private pasture of an adjoining landowner, in a natural water course, at some considerable distance from any public highway, street, or public place, and not immediately adjacent to or near by any place where children of tender years resorted for the purpose of play or amusement, whereas he should have so held.
(7) Because his honor erred in refusing defendant's motion for a directed verdict in his favor at the conclusion of all the testimony on the ground that there was no duty of the defendant to protect or safeguard its right of way at the place in question against trespassers, either adults or children, and especially as against trespassing children of sufficient age and discretion and intelligence to know and appreciate, and who did know and appreciate, the danger, and that such children who know and appreciate the danger stand in identically the same position as adult trespassers, and take the premises as they find them, with all the perils and dangers, and cannot recover for any injury accruing while trespassing, or while there as licensees, whereas he should have so held.
(8) Because his honor erred in refusing defendant's motion to direct a verdict in his favor at the conclusion of the testimony, on the ground that plaintiff's intestate was a bright, active and intelligent boy of sufficient age and discretion to know of and appreciate the danger, and did know and appreciate the danger, of going in swimming in the wash hole or pool of water at the time and place in question, having been warned and cautioned against so doing, and in not being able to swim, and that, under such circumstances plaintiff's intestate entered upon the defendant's right of way at his own risk, and cannot recover.
(9) Because his honor erred in overruling defendant's motion for a directed verdict in his favor at the conclusion of all the testimony, on the ground that the undisputed testimony conclusively establishes that plaintiff's intestate was a bright, active and intelligent boy who had been warned of and well knew the danger of going in swimming at the time and place in question, and therefore the only reasonable inference of all the testimony was and is that plaintiff's intestate was the author of his own injury, and his death was therefore directly due to his own negligence.
(10) Because his honor erred in overruling defendant's motion for a directed verdict in his favor at the conclusion of all the testimony, on the ground that the testimony shows conclusively that the cause of action is not based on any liability of the Director General of Railroads as a common carrier, and is therefore without warrant of law, the court not having jurisdiction of the action, and his honor should have so held.
(11) Because his honor erred in charging the jury as follows: --the error being (a) that the jury was thereby prevented from determining that the pool or pond of water in the stream was a natural pool or pond of water, and (b) that the jury were thereby instructed in effect that the defendant would be liable to the plaintiff for the death of son if the defendant had negligently erected or maintained an embankment or fill across a natural water course, and (c) that the erection and maintenance of a culvert of insufficient size in said fill or embankment was the direct and proximate cause of the death of plaintiff's intestate, and (d) that the defendant should safeguard a pool of water in a natural water course if the jury should conclude that the same was dangerous to children of tender years, and (e) that his honor thereby charged on the facts in violation of section 26, art. 5, of the Constitution of 1895.
(12) Because his honor erred in charging plaintiff's request to charge as follows: ...
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