Cleland v. Atlantic Coast Line R. Co.

• Decision Date: 30 March 1965
• Docket Number: No. 18325,18325
• Citation: 245 S.C. 478,141 S.E.2d 339
• Parties: J. R. CLELAND, Respondent, v. ATLANTIC COAST LINE RAILROAD COMPANY, Appellant.
• Court: South Carolina Supreme Court

Page 339

141 S.E.2d 339

245 S.C. 478

J. R. CLELAND, Respondent, v. ATLANTIC COAST LINE RAILROAD COMPANY, Appellant.

No. 18325.

Supreme Court of South Carolina.

March 30, 1965.

Grier, McDonald, Todd, Burns & Bradford, Greenwood, for appellant.

Murdaugh, Eltzroth & Peters, Hampton, for respondent.

PER CURIAM.

This action was instituted by J. R. Cleland, the respondent therein, against the Atlantic Coast Line Railroad Company, the appellant herein, the Court of Common Pleas for Hampton County, to recover damages for personal injuries alleged to have been caused and occasioned by the negligence of the appellant, while he was employed by it as a member of a construction crew engaged in maintaining, constructing and repairing railway signals in Williamsburg County. The action was brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. The answer of the appellant is a general denial and a plea of negligence on the part of the respondent in diminution of damages.

This is an appeal from an order of the Circuit Court refusing a motion made by the appellant for a change of venue from Hampton County to Williamsburg County, upon the ground that 'the convenience of witnesses and the ends of justice would be promoted by the change.' Section 10-310(3), 1962 Code of Laws.

We have repeatedly held that a motion for a change of venue is addressed to the sound judicial discretion of the Judge who hears it and his decision will not be disturbed by this Court except upon a clear showing of abuse of discretion amounting to manifest error of law. In order to prevail on a motion for a change of venue, the moving party must make a prima facie showing that both the convenience of witnesses and the ends of justice will be promoted by the change and upon such showing having been made, the burden shifts to the party resisting the motion to overcome it as to at least one of these requirements. We have also held that the promotion of the ends of justice is served by having a jury of the vicinage pass upon the credibility of witnesses. Harper v. Newark Ins. Co., 244 S.C. 282, 136 S.E.2d 711; Skinner v. Santoro, 245 S.C. 35, 138 S.E.2d 645; Oswald v. Oswald, 245 S.C. 44, 138 S.E.2d 639.

The motion of the appellant for change of venue was based upon thirteen affidavits and twelve of the affiants are material witnesses in the case. Eight of these witnesses were members of the construction crew of which the respondent was also a member, and each assert their familiarity with the circumstances preceding, at the time of, and following the incident from which the respondent claims to have received certain injuries. Three of these affiants reside in the state of North Carolina, one in the state of Georgia, one in Dillon County and three in Berkeley County, South Carolina. Another witness is a retired medical practitioner who lives in Florida and had examined the respondent in the latter part of 1958 and the early part of 1959, and will testify as to his findings. These nine affiants aver that there is no passenger railway service to Hampton, and that Kingstree, in Williamsburg County, is on the main line of the appellant and adequate passenger service is provided from the home of each of them to Kingstree. They also aver that because of the inadequate transportation facilities from their home to Hampton that such will work a severe inconvenience and hardship upon them and it would better serve their convenience to attend court in Williamsburg County.

It appears that the appellant will have three witnesses who live in Williamsburg County. One is the ambulance driver who transported the respondent from the place of injury to the hospital; another is the physician who treated him for two days following his injury while he was a patient in said hospital, and the third is the librarian at the hospital who has custody of the hospital records relating to the respondent for the period June 12, 1963 through June 14, 1963. These three witnesses from Kingstree aver that a trial in Hampton County would cause them inconvenience and it would serve their convenience to attend court in Williamsburg County.

It appears by affidavit of one of the attorneys for the appellant that he is informed and believes that this action is brought in Hampton County by the respondent, who was a resident of Jasper County at the time stated in the complaint; that the alleged cause of action arose in Williamsburg County; that no eyewitnesses to the alleged accident have resided or presently reside in Hampton County or in Jasper County; that the witnesses to the alleged accident were members of a signal construction crew and are employees of and live on the main line of the appellant over which passenger service is provided to Kingstree, South Carolina; that there is no railroad passenger service to Hampton, South Carolina; that the members of the signal construction crew are given work assignments from one week to the next and may or may not work together, depending upon the needs of the railroad at a given time, and that the convenience of witnesses and the ends of justice would be promoted by having the trial of this case in Williamsburg County.

In opposition to the said motion, the respondent has submitted affidavits of two witnesses who reside in Jasper County; one witness who resides in Augusta, Georgia, and eight...