114 S.E. 416 (S.C. 1922), 11022, Towill v. Southern Ry. Co.

Docket Nº:11022.
Citation:114 S.E. 416, 121 S.C. 447
Opinion Judge:MARION, J.
Party Name:TOWILL v. SOUTHERN RY. CO. ET AL.
Attorney:Timmerman & Graham, of Lexington, for appellant. George B. Cromer, of Newberry, for respondents.
Case Date:October 04, 1922
Court:Supreme Court of South Carolina
 
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Page 416

114 S.E. 416 (S.C. 1922)

121 S.C. 447

TOWILL

v.

SOUTHERN RY. CO. ET AL.

No. 11022.

Supreme Court of South Carolina

October 4, 1922

Appeal from Common Pleas Circuit Court of Lexington County; J. W. De Vore, Judge.

Action by Daisy Pearce Towill, as administratrix of the estate of John Bell Towill, deceased, against the Southern Railway Company, a corporation, and another. From an order of the circuit court granting a petition for removal to the United States District Court, plaintiff appeals. Reversed.

Page 417

The following are the here essential allegations of the complaint, referred to in the case:

(4) That, on information and belief, plaintiff's intestate, on or about the 8th day of April, 1921, in the evening, went to the station of the defendant Southern Railway Company, in the town of Batesburg aforesaid, with the purpose [121 S.C. 450] of becoming a passenger upon the defendant Southern Railway Company's passenger train aforesaid, and in pursuance of said purpose purchased a ticket of the defendant company's ticket agent at its station in the town of Batesburg aforesaid for transportation over its said line of railroad as a passenger on its said passenger train from the town of Batesburg to the town of Johnston in said state, paying for the same the regular price therefor, and thereby then and there became a passenger upon the premises of the defendant Southern Railway Company.

(5) That, on information and belief, while plaintiff's intestate was in the act of boarding the defendant's said passenger train as a passenger thereon at the said station of Batesburg he was thrown and precipitated upon the ground and railway track of the defendant Southern Railway Company and the wheels of the cars of said train passed over the lower extremities of plaintiff's intestate's legs, and crushed, bruised, and mangled the same and severed the feet therefrom, and as a result of the injuries so received plaintiff's intestate died about 10 hours thereafter.

(6) That, on information and belief, the injuries and death of plaintiff's intestate was caused by the joint and concurrent negligent, reckless, wanton, and willful acts and conduct of the defendants in the following particulars, to wit: (a) In causing the passenger train that plaintiff's intestate was attempting to board as a passenger to move suddenly forward without notice or warning, and with a sudden jerk or lurch; (b) In causing the said passenger train to move forward without giving the signals required by law; (c) in failing to furnish reasonable accommodations for the convenience and safety of passengers boarding and alighting from said train as required by law; (d) in failing to keep the right of way adjacent to the railway track, at and near the said station of Batesburg where passengers get on and off of passenger trains, in a good and [121 S.C. 451] safe condition and free from hinderances and obstructions to the free and safe passage of passengers using the same for the purpose of getting on and off the passenger trains of the defendants, and in leaving dangerous obstructions on the right of way at and near the point where plaintiff's intestate was in the act of boarding said train; (e) in failing to provide sufficient lights at said station of Batesburg so as to enable passengers to safely get on and off of passenger trains thereat; (f) in failing to keep a proper lookout for the safety of passengers getting on and off of its said trains at said station; (g) in failing to use due and proper care and caution for the safety of passengers getting on and off of the passenger trains at said station; and (h) in failing to use any care or caution whatsoever for the safety of passengers, and in the management, control, and movement of the said train at said station--all of which was in utter disregard of the rights of plaintiff's intestate.

(7) That by reason of the aforesaid negligent, reckless, willful, and wanton acts and conduct of the defendants in causing the death of plaintiff's intestate and as a direct result thereof, his widow, Daisy Pearce Towill, and his four minor children of tender years, John Bell Towill, Jr., Daisy Pearce Towill, Richard Towill, and Angeline Towill, have been deprived of the aid, maintenance, comfort, society, council, advice, and education of plaintiff's intestate, the husband and the father, for whose benefit this action is brought pursuant to the statute in such case made and provided, to their damage in the sum of $100,000.

The petition for removal is as follows:

Page 418

Your petitioner, Southern Railway Company, appearing especially and solely for the purpose of making this application to remove this case to the United States District Court for the Eastern District of South Carolina, respectfully shows:

(1) That the controversy in the said suit is a claim and demand by the plaintiff for judgment against your petitioner. [121 S.C. 452] Southern Railway Company, and James Harling for damages in the sum of $100,000 and the costs of this action, for the fatal injury to John Bell Towill, the plaintiff's intestate, which the plaintiff alleges was caused on the 8th day of April, 1921, in the town of Batesburg, Lexington county, by the joint and concurrent negligence, recklessness, wantonness, and willfulness of the defendants, in the following particulars, specified in the complaint: (a) In causing the passenger train that plaintiff's intestate was attempting to board as a passenger to move suddenly forward without notice or warning, and with a sudden jerk and lurch; (b) in causing the said passenger train to move forward without giving the signals required by law; (c) in failing to furnish reasonable accommodations for the convenience and safety of passengers boarding and alighting from said train as required by law; (d) in failing to keep the right of way adjacent to the railway track at and near the said station of Batesburg where passengers get on and off free from hindrances and obstructions to the free and safe passage of passengers using the same for the purpose of getting on and off the passenger trains of the defendants, and leaving dangerous obstructions on its right of way at and near the point where plaintiff's intestate was in the act of boarding said train; (e) in failing to provide sufficient lights at said station of Batesburg so as to enable passengers to safely get on and off of passenger trains thereat; (f) in failing to keep a proper lookout for the safety of passengers getting on and off of its said trains at said station; (g) in failing to use due and proper care and caution for the safety of passengers getting on and off of the passenger trains at said station; and (h) in failing to use any care or caution whatsoever for the safety of passengers, and in the management, control and movement of the said train at said station; all of which was in utter disregard of the...

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