Dix v. Atlantic Coast Line R. Co.

• Citation: 82 S.E. 798,98 S.C. 492
• Decision Date: 02 September 1914
• Docket Number: 8930.
• Parties: DIX v. ATLANTIC COAST LINE R. CO.
• Court: United States State Supreme Court of South Carolina

82 S.E. 798

98 S.C. 492

DIX v. ATLANTIC COAST LINE R. CO.

No. 8930.

Supreme Court of South Carolina

September 2, 1914

Appeal from Common Pleas Circuit Court of Berkeley County; C.J Ramage, Special Judge.

Action by Katie Dix, as administratrix of Peter Maxwell, deceased against the Atlantic Coast Line Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Mordecai & Gadsden & Rutledge and Octavus Cohen, all of Charleston for appellant.

W. A. Holman, of Charleston, and E. J. Dennis, of Monck's Corner, for respondent.

HYDRICK J.

This appeal is from a judgment against defendant for $1,000 damages for the wrongful killing of Peter Maxwell, who was 29 years old, and was employed as a water carrier for a construction force, engaged in double tracking defendant's road.

Following is the substance of the testimony which is pertinent to the issues:

For plaintiff: W. A. Smoak: Was engineer of a work train, consisting of nine flat cars, loaded with steel rails, which were being pushed backwards on the main line, at a speed of from 15 to 18 miles an hour, past the place where the construction force was at work; was on the right-hand side of the engine, going north; deceased came on the track from the left; there were 25 or 30 negroes on the cars, some sitting and some standing, and he could not see deceased, though he was looking ahead, but his view was not obstructed over the end of the cars, or to his right; did not see deceased until his engine passed him, where he was lying on the side of the track; the construction company had a train which was being constantly run back and forth hauling earth, and there were other trains constantly passing; this was known to all concerned; there was a path about two feet wide alongside the track, in which deceased could have walked with safety, and it was a better place to walk than on the track.

For defendant: S.E. Dickson: Was conductor of the train, on the forward car, looking ahead; first saw deceased about 250 to 300 feet ahead of the train; he was then on the new track, talking to the foreman; he walked across and got on the main line, and walked about the length of a rail, and then turned, quartering from the way they were going, so that he thought deceased was going to get off the track; he turned his head, as though he saw the train, and was going to get off the track, but did not do so, and, as soon as he concluded that deceased did not see the train, he began shouting at him and waving the engineer to stop, who responded to the signal by putting on the air brakes; the engineer could have seen deceased if he had been permanently on that side of the track, but he was on that side only six or eight seconds before he was struck; no warning signal was given at that time, other than the shouting at deceased, though the crossing signal--four blasts of the whistle--had been given 300 feet further back; did not think it would have been possible for the engineer to have stopped the train in time to prevent the accident, after deceased came on the track, even if he had seen him.

M. M. Worthington, engineer of construction work: Was riding on front car with conductor; saw deceased on the track about four car lengths ahead; as he did not get off, yelled at him, and, when train was 5 or 10 feet from him, screamed at him as loud as he could, but deceased did not get off, and was struck by the end of the car.

A. K. Haxston, assistant engineer of construction work: Was on front car; heard a lot of shouting; looked up, and saw deceased 40 or 50 feet ahead, walking along the end of the cross-ties; the conductor had his arms out--the stop signal--and witness felt the air brakes go on; deceased did not appear to hear the shouting, or the noise of the train; there was a path alongside the track in which deceased could not have been hurt; crossing signal had been blown 400 or 500 feet from where deceased was struck.

Hyman Brenner: Knew deceased for past 8 to 12 years; he was hard of hearing; talking face to face, he would know what you were saying, but let him turn his head, and from 5 to 10 feet off, he could not hear anything; think he could have heard a train blow, if it was very near.

The court below was requested to direct...