55 S.E. 128 (S.C. 1906), Lawton v. Seaboard Air-Line Ry.

Citation:55 S.E. 128, 75 S.C. 82
Opinion Judge:GARY, A. J.
Party Name:LAWTON v. SEABOARD AIR LINE RY.
Attorney:Lyles & McMahan and James W. Moore, for appellant. W. B. DeLoach and W. S. Smith, for respondent.
Case Date:August 16, 1906
Court:Supreme Court of South Carolina
 
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Page 128

55 S.E. 128 (S.C. 1906)

75 S.C. 82

LAWTON

v.

SEABOARD AIR LINE RY.

Supreme Court of South Carolina

August 16, 1906

Appeal from Common Pleas Circuit Court of Hampton County; Purdy, Judge.

Action by W. H. Lawton against the Seaboard Air Line Railway. Judgment for plaintiff, and defendant appeals. Affirmed.

Lyles & McMahan and James W. Moore, for appellant. W. B. DeLoach and W. S. Smith, for respondent.

GARY, A. J.

This is an action for damages, alleged to have been sustained by the plaintiff through the defendant's negligent construction of an embankment across [75 S.C. 83] a water course, in consequence of which the plaintiff's lands were injured. The complaint alleges that on or about the _______ day of May, 1897, the South Bound Railroad Company negligently constructed an embankment on its right of way, over and across Meeting House Branch, a natural water course, running through plaintiff's land, having a well-defined channel, with bed, sides, and bank; that in the erection of said dam, the South Bound Railroad Company neglected to build a culvert, or any opening whatever, through which the said waters could flow; that said embankment was erected to a height of about 15 feet, and since its construction it has been maintained and continued, as originally constructed, whereby said stream was deflected from its natural channel and thrown back upon the plaintiff's lands; that on or about the _______ day of May, 1901, the South Bound Railroad Company merged and consolidated its capital stock and franchises with those of the Seaboard Air Line Railway Company, under the name of the latter corporation, which became the owner of the property, and subject to all the duties and liabilities of the South Bound Railroad Company.

The defendant relied upon the statute of limitations, and in its answer alleged as a defense, that the cause of action did not accrue within six years before the commencement of the action. It seems that the action was commenced in September, 1904. The jury rendered a verdict in favor of the plaintiff for $500, and the defendant appealed upon a single exception, which is as follows: ""Because, upon defendant's request to charge as follows: 'If the injury complained of occurred six years before the commencement of this action, you must find for the defendant railway,' his honor modified the same by saying: 'I charge you, adding this: "If...

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