135 F. 960 (4th Cir. 1905), 547, Davenport v. Southern Ry. Co.
|Citation:||135 F. 960|
|Party Name:||DAVENPORT v. SOUTHERN RY. CO. et al.|
|Case Date:||February 21, 1905|
|Court:||United States Courts of Appeals, Court of Appeals for the Fourth Circuit|
H. J. Haynsworth (Haynsworth, Parker & Patterson, on the brief), for plaintiff in error.
T. P. Cothran, for defendant in error.
Before GOFF, Circuit Judge, and PURNELL and McDOWELL, District Judges.
McDOWELL, District Judge.
This action was instituted in a state court of South Carolina, and was removed to the United States Circuit Court for the District of South Carolina by the nonresident defendant, the Southern Railway Company. A motion to remand was overruled, and at the trial a verdict for the defendant was directed, and judgment entered accordingly. The complaint reads as follows:
STATE OF SOUTH CAROLINA, COUNTY OF GREENVILLE.
IN COURT OF COMMON PLEAS.
William Davenport, as administrator of the estate of Emma Davenport, deceased, plaintiff, against Southern Railway Company, Richard Joel and William Jones, defendants.
The plaintiff, complaining against the defendants, alleges:
(1) That the defendants Richard Joel and William Jones are residents of the county and state aforesaid.
(2) That the defendant Southern Railway Company is a corporation duly chartered under the laws of the state of Virginia, and is the owner of and operates a certain line of railway in the state of South Carolina, extending from the city of Greenville by the town of Piedmont to the city of Columbia, which railway was formerly known as the Columbia & Greenville Railroad. And the Southern Railway Company is engaged in the business of a common carrier on said railroad, and has an office in the county and state aforesaid.
(3) That at Piedmont, in the county and state aforesaid, there are located the mills and mill village of the Piedmont Manufacturing Company. That
said mill village is quite populous, containing several thousand inhabitants. That the lands on which the said mills and village are situate are owned by the Piedmont Manufacturing Company, and extend to within a few feet of the station of the Southern Railway Company at said place.
(4) That many years ago a spur or side track was constructed from the main line of said railroad at a point near the station at Piedmont to a point near the mills of the Piedmont Manufacturing Company, a distance of about one mile; the said spur or side track extending along and over the lands of the said Piedmont Manufacturing Company. That the said Southern Railway Company does not own the land or the right of way over which the said spur or side track extends, but is maintaining the said track, running its cars thereon as licensee, and was and is without exclusive rights thereto. That the said spur is seldom used, and only for the purpose of hauling freights to and from the said mill. That no locomotive is kept at the station at Piedmont, and that the said spur or side track is used only at such times as there happens to be a freight engine at said station.
(5) That a short distance from the said mills, and near the center of the town of Piedmont, the said spur or side track crosses a deep hollow or valley over which is a long trestle from one side to the other, and this has been habitually used as a public walkway on which the people of the town of Piedmont, including men, women, and children, some of them being of very tender age, have been accustomed immemorially to travel, to wit, for the space of more than twenty years, as plaintiff is informed and believes. This fact was well known to the defendants. And that the Southern Railway Company has made no objection to such use, and has taken no steps to prevent the same, and has acquiesced therein.
(6) That Emma Davenport, late of the county and state aforesaid, was the wife of William Davenport, and that they, with their children hereinafter named, resided in the town of Piedmont; and that the said William Davenport, together with his daughter Ida and his son John Allen, were in the employ of the Piedmont Manufacturing Company; and that the said family resided in and rented one of the tenement houses in Piedmont belonging to said Piedmont Manufacturing Company, which was situate on the opposite side of the said hollow from the mills of the said company, and were entitled to use the said walkway.
(7) That on the morning of January 31, 1903, while the said William Davenport and his said two children were at work in the mills of the Piedmont Manufacturing Company, the said Emma Davenport had occasion to go from her house to that portion of the town lying near the said mills, and she took her little boy, Mack, a child of five years of age. That in doing so, she, in pursuance of the usual custom and practice of the said people residing in said village, walked with her son along the plankway over the said trestle. That she had nearly reached the opposite side of the trestle, when she suddenly saw a hand car heavily loaded with cross-ties coming from behind a bend in a deep cut only a short distance away, and approaching her with great speed. That, realizing her inability to reach the end of the trestle towards which she was going in time to escape the hand car, and that her only chance of escape was to retreat to a bench or safety place near the middle of said trestle, she gathered her child in her arms, and ran back toward said safety place, thus endeavoring to escape the hand car. That just before she reached the said safety place she was struck by the hand car and violently thrown from the trestle with great force, her child being still in her arms. That she fell to the ground below, a distance of 30 feet, and her skull was broken, and her shoulder and collarbone and chest crushed in; from which injuries she suffered great pain and died shortly thereafter.
(8) That the defendants Richard Joel and William Jones were section hands in the employ of the Southern Railway Company at and near Piedmont, and in pursuance of their employment they had previously carried the said hand car from a point on the main line over the said spur or side track across the trestle to a point near the mills of the Piedmont Manufacturing Company, and had there loaded the same heavily with cross-ties. That in returning they pushed the said hand car to a point where it struck a downgrade leading
towards said trestle, and at that point they negligently and recklessly turned loose said hand car, and without getting on the car, or taking any precautions whatever to control and direct its movements, and without any warning or notice whatever, and without taking any steps to see that the track was clear and that no one would be endangered, they let the said car go forward with great speed and violence, and that in its unrestrained course it ran upon and killed the said Emma Davenport. That the point where the hand car was turned loose was some three hundred feet, more or less, from the trestle, and the view of the trestle being shut off by the sides of a deep cut, through which the spur or side track passed, and in doing so bends; so that the said Emma Davenport could not see the said car until it was very near to her, and the defendants gave her no notice of her peril until it was too late to escape.
(9) That the conduct of the defendants in turning loose the said hand car loaded with cross-ties in the midst of the said town of Piedmont, and in allowing it to rush uncontrolled across the said trestle, which they...
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