75 S.E. 172 (S.C. 1912), Fonville v. Atlanta & C. Air Line Ry. Co.

Citation:75 S.E. 172, 93 S.C. 287
Opinion Judge:HYDRICK, J. WOODS, J.
Party Name:FONVILLE v. ATLANTA & C. AIR LINE RY. CO. et al.
Attorney:Cothran, Dean & Cothran, of Greenville, for appellants. Haynsworth & Haynsworth, of Greenville, and John Gary Evans, of Spartanburg, for respondent.
Case Date:July 05, 1912
Court:Supreme Court of South Carolina
 
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Page 172

75 S.E. 172 (S.C. 1912)

93 S.C. 287

FONVILLE

v.

ATLANTA & C. AIR LINE RY. CO. et al.

Supreme Court of South Carolina

July 5, 1912

Appeal from Common Pleas Circuit Court of Greenville County; Ernest Gary, Judge.

Action by Georgie E. Fonville, as administratrix of William J. Fonville, deceased, against the Atlanta & Charlotte Air Line Railway [93 S.C. 288]Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Cothran, Dean & Cothran, of Greenville, for appellants. Haynsworth & Haynsworth, of Greenville, and John Gary Evans, of Spartanburg, for respondent.

HYDRICK, J.

This action was brought to recover damages for the alleged wrongful death of Wm. J. Fonville. The cause and circumstances of his death are set forth in the complaint as follows:

"(5) That plaintiff's intestate was on the 24th day of September, 1908, and had been for some years, an engineer in the employment of the defendant Southern Railway Company, and on said date was operating an engine drawing train No. 41, a regular passenger train, on defendants' main line from Charlotte, N. C., to Seneca, S. C.

"(6) That on said main line, at a point about one mile south of Wellford, S. C., a spur track, known as Gross' Siding, leaves the main line and extends in a southeasterly direction to Gross' oil mill, and, after passing said mill, it again connects with the main line. That the movement of the spur track at the points of intersection with the main line are controlled by a switch at each connection with the main line. That the switch has connected with it a lantern so placed that it will in the nighttime show a white light when the switch is closed and the main line clear, and a red light when the switch is open and the main line not clear. That some such arrangement is necessary in order to provide for the safety of the employés operating trains in the nighttime, [93 S.C. 290] and it is necessary that the light be so placed that it may be seen by the persons in charge of the approaching train.

"(7) That for some distance north of said point the track is curved, and runs through a deep cut and under an overhead bridge, causing the view of an engineer on a south-bound train to be obstructed, so that the signal light placed as it was at Gross' Siding is concealed from view, except for a very short distance. That the said light could have been easily so placed or arranged as to be seen by those in charge of approaching south-bound trains, and that the failure to so place or arrange it was negligence on the part of the defendant.

"(8) That the train in charge of the plaintiff's intestate, at about 40 minutes after 8 o'clock on the evening of said date, approached said siding. That the switch connecting said spur track with the main line had been carelessly left unlocked and open, so that the train operated by plaintiff's intestate ran upon said spur track for about 250 feet, where the engine and two of the coaches were derailed, overturned, and wrecked, and plaintiff's intestate was caught under said engine, and so badly mangled, crushed, and scalded that he died a few minutes thereafter.

Page 173

"(9) That the death of plaintiff's intestate was caused by the joint and concurrent negligence of the defendants, as follows: That the said switch was carelessly left unlocked or open, or was not provided with a safe and suitable lock, so as to secure it from outside interference, and that at the time of the approach of said train it had been, through the negligence of the defendants, thrown so as to connect the spur track. That the switch light was carelessly placed, so that it could not be seen by the approaching south-bound trains, and could not warn those operating said trains when the switch was thrown. The spur track was carelessly and negligently constructed and maintained, the rails were too light and improperly secured or fastened, the ties defective, the [93 S.C. 291] roadway not properly ballasted, or graded, so as to enable trains to pass over it in safety."

The allegations of the fifth paragraph were admitted. All others were denied.

The plaintiff introduced testimony tending to prove all the material allegations of the complaint. Besides relying upon their denial of the material allegations of the complaint, the...

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