Appeal
from Common Pleas Circuit Court of Greenville County; Ernest
Gary, Judge.
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, 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.
"(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 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 defendants undertook to prove that Fonville's death
was caused by the malicious act of a negro boy, named
Clarence Agnew, who, according to their contention, broke the
switch lock, and threw the switch. The train was wrecked
between 8 and 9 o'clock at night, at Gross' Siding,
which is about half way between Duncan and Wellford.
Defendants introduced testimony tending to prove that the
switch lights were burning, and that the switch was properly
set about 6 o'clock that evening, and that about that
time, or a little later, Agnew was seen on the railroad going
from Duncan towards Wellford; that he was seen knocking at
the switch; that he was arrested the next morning at the
scene of the wreck and carried to jail, charged with having
maliciously caused the wreck; that on the next day--that is,
the second day after the disaster--he was taken to the scene
by the sheriff, who, following Agnew's directions, found
an iron bolt and a part of the switch lock some distance from
the switch, and another part of the lock was pointed out to
the sheriff by him at or near Wellford, where Agnew was seen
about dark on the evening of the disaster. Defendants offered
to prove that Agnew had confessed to the sheriff and others
that he broke the lock and threw the switch, and they also
offered to prove, by the record thereof, his conviction,...
