85 S.E. 433 (S.C. 1915), 9070, Halsall v. Atlantic Coast Line R. Co.

Docket Nº:9070.
Citation:85 S.E. 433, 100 S.C. 483
Party Name:HALSALL v. ATLANTIC COAST LINE R. CO. ET AL.
Attorney:W. Huger Fitz Simons, of Charleston, for appellants. Logan & Grace, of Charleston, for respondent.
Case Date:April 19, 1915
Court:Supreme Court of South Carolina
 
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Page 433

85 S.E. 433 (S.C. 1915)

100 S.C. 483

HALSALL

v.

ATLANTIC COAST LINE R. CO. ET AL.

No. 9070.

Supreme Court of South Carolina

April 19, 1915

Appeal from Common Pleas Circuit Court of Charleston County; H. F. Rice, Judge.

Action by John R. Halsall against the Atlantic Coast Line Railroad Company and others. From an order refusing defendant's motion for a nonsuit on remittitur, defendants appeal. Affirmed.

Hydrick, J., dissenting.

W. Huger Fitz Simons, of Charleston, for appellants.

Logan & Grace, of Charleston, for respondent.

HYDRICK, J.

This is the second appeal in this case. The facts appear in detail in the opinion of the court on the first appeal. 96 S.C. 308, 80 S.E. 467. As will be seen by reference thereto, plaintiff received judgment against defendant for $8,000 damages for personal injuries. In brief, the facts were as follows: Plaintiff, as brakeman, was on the pilot of an engine, piloting it through defendant's yards at Charleston for the purpose of attaching it to a freight train. Defendant, Graham, was engineer in charge of this engine, which was approaching another track on which a freight train, of which defendant, Cameron, was conductor, was being moved through the yard. Plaintiff saw the freight train, and saw that his engine was approaching too near it, and, according to his testimony, he signaled Graham, the engineer, to stop. Graham did not heed the signal, and, when plaintiff saw that a collision was imminent he jumped [100 S.C. 485] and was thrown under the freight train, and seriously injured.

Defendant moved the circuit court for a nonsuit and the direction of the verdict on the following grounds: (1) That there is a total absence of testimony to support the material allegations of the complaint. (2) Because the plaintiff's own testimony shows that whatever injury plaintiff received was the result of his own negligence. (3) Because plaintiff's own testimony shows that whatever injury he received was the result of the negligence of a fellow servant. (4) Because there is no testimony to show that the injury was the result of any negligence on the part of the defendant in this case.

The only specifications of negligence alleged appear in the fourth paragraph of the complaint, and were as follows: (a) In failing and omitting to give any warning whatever by lights, signals, or otherwise, of the presence of the train of box cars on said old main line track, and immediately in front of the engine on which said plaintiff was riding, and not in any way protecting, by lights or otherwise, what was the rear of said train as soon as each box car came upon said old main line track. (b) In failing and omitting to stop or slow up said engine upon which said plaintiff was riding in response to the signals given by said plaintiff in order to avoid collision with said train of box cars. (c) In failing and omitting to have said engine upon which said plaintiff was riding under such control that it could have been stopped without coming into collision with said train of box cars.

The sole contention of appellant on the former appeal was that its motion for nonsuit and direction of the verdict should have been granted, on the ground that Graham and plaintiff were fellow servants. This Court sustained that[100 S.C. 486] contention, and held, in the opinion first filed, that two of the specifications of negligence, (b) and (c), were as to the performance by Graham of his duties as engineer; that, as engineer, he and the plaintiff were fellow servants, and therefore no recovery could be had against the defendant for the negligence of Graham.

On petition filed by plaintiff for a rehearing, one of the grounds was that the court had not considered the plaintiff's right to recover under specification (a) of negligence. The court dismissed the petition and, in response to that contention, said:

"The...

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