Fraser v. Atlantic Coast Line R. Co.

• Decision Date: 09 December 1912
• Citation: 76 S.E. 609,93 S.C. 272
• Parties: FRASER v. ATLANTIC COAST LINE R. CO.
• Court: South Carolina Supreme Court

76 S.E. 609

93 S.C. 272

FRASER v. ATLANTIC COAST LINE R. CO.

Supreme Court of South Carolina

December 9, 1912

Appeal from Common Pleas Circuit Court of Colleton County; R. W Memminger, Judge.

Action by James Fraser against the Atlantic Coast Line Railroad Company. From a judgment for plaintiff, defendant appeals. Dismissed.

Padgett Lemacks & Moorer, of Walterboro, for appellant. Peurifoy Bros., of Walterboro, for respondent.

GARY C.J.

This is an appeal from an order in which his honor, the circuit judge, thus states the facts: "This cause was heard on appeal from the magistrate's court, where judgment was in favor of the defendant. The defendant's train killed an ox or bull belonging to plaintiff, and was sued by the plaintiff for $40 damages therefor. The defendant admitted the killing at the trial, and attempted to remove the presumption of negligence arising, and the direct proof of negligence which was submitted on behalf of plaintiff. This the defendant failed to do. The magistrate in his report based his finding on the fact that plaintiff had contributed to his injury. The defense was a general denial and contributory negligence was not pleaded by the defendant. After a review of the pleadings and testimony, I am satisfied that the magistrate was in error, and that the judgment should have been in favor of the plaintiff, in the sum of $40 and his costs. It is ordered that the judgment in favor of the defendant be reversed, and that the plaintiff have judgment against the defendant, in the sum of $40 and his costs."

The defendant appealed upon the following exceptions: "(1) Because the presiding judge erred in reversing the magistrate, and ordering judgment against the defendant, the evidence of defendant having overcome the presumption of negligence, arising from the proof of the killing, and the direct proof of negligence, submitted on behalf of the plaintiff (2) Because the circuit judge erred in holding and deciding that the magistrate was in error in basing his finding upon the fact that the plaintiff contributed to the killing, and in holding that defendant could not prove contributory negligence; the same not having been pleaded. (3) Because the circuit judge abused his discretion in ordering judgment for the plaintiff, and in not remanding the case for a new trial; the testimony being conflicting. (4) Because the circuit judge was in error in holding and deciding that the...