Driggers v. Atlantic Coast Line R. Co.

• Decision Date: 28 March 1928
• Docket Number: 12414.
• Citation: 148 S.E. 889,151 S.C. 164
• Parties: DRIGGERS v. ATLANTIC COAST LINE R. CO. et al.
• Court: South Carolina Supreme Court

148 S.E. 889

151 S.C. 164

DRIGGERS v. ATLANTIC COAST LINE R. CO. et al.

No. 12414.

Supreme Court of South Carolina

March 28, 1928

Reversed on Mandate of United States Supreme Court July 9, 1929.

Appeal from Common Pleas Circuit Court of Charleston County; J. W De Vore, Judge.

Action by Marcella Driggers, as administratrix of the estate of William A. Driggers, deceased, against the Atlantic Coast Line Railroad Company and another. Judgment for plaintiff and defendants appeal. Affirmed.

The complaint, omitting the caption, was as follows:

Complaint

"The plaintiff, complaining of the defendants, alleges:

"1. That the defendant, Atlantic Coast Line Railroad Company is a foreign corporation organized and existing under the laws of some state unknown to this plaintiff, but at the times hereinafter mentioned was and is operating, maintaining and controlling a railroad passing through the County of Charleston, state aforesaid, where it had and now has agents and offices for the transaction of its business, which defendant is hereinafter referred to as the defendant company.

"2. That at the times hereinafter mentioned, the abovenamed defendant, M. H. Brandt, was employed by the defendant company as an engineer, and was the engineer on and was operating the train which killed the plaintiff's intestate, as is hereinafter set forth.

"3. Upon information and belief that heretofore and on or about June 4, 1924, the plaintiff's intestate was employed by the abovenamed defendant company as a brakeman, and was working on engine No. 164, which engine was controlled and operated by the defendant company, and was at that time operated on the main line at Etiwan Lead, in the County of Charleston. State aforesaid: that as the said engine No. 164 was approaching the southbound track of the defendant company, at or near the place known as Etiwan Lead, in the County of Charleston, State aforesaid, at a point which had been constantly used for switching purposes, and at which point freight trains were being switched at all hours of the day, making it necessary for the brakeman and other employees of the defendant company to step on and off the trains which were being operated by them at that point for the purpose of locking and unlocking the switches located there, and for the purpose of performing such other duties as they were required to perform by the defendant company, its agents and servants, the presence of which employees at that point was well known or should have been known to the defendant company, its agents and servants who were operating the defendant company's trains,--the plaintiff's intestate, in the performance of his duties, stepped off the said engine No. 164, at or near the main line of the defendant company, located at or near Etiwan Lead, in the County of Charleston, State aforesaid; that while he was so doing, the defendants, their agents and servants negligently, carelessly, recklessly and wantonly operated one of the trains of the defendant company (which under the schedule fixed by the defendant company was not due or expected at that time at that point) without blowing any whistle or giving any warning of the approach of the said train, and running at an excessive and dangerous rate of speed, and caused the same to run upon, strike, mash, bruise, mangle, and kill the plaintiff's intestate.

"4. Upon information and belief that the death of the said plaintiff's intestate was caused by the negligence, carelessness, recklessness and wantonness of the defendants, their agents and servants in the following particulars, to wit:

"(a) In causing and allowing the said train to run down and upon the said intestate.

" (b) In operating the said train at a high and dangerous rate of speed, and at a rate of speed greatly in excess of that allowed by the rules and regulations of the defendant company, and greatly in excess of the speed at which trains are allowed to be operated by the defendant company within its yards.

"(c) In operating the said train at such an excessive rate of speed as to prevent the plaintiff's intestate from getting out of the way of the said train, and to avoid being run over by it.

"(d) In failing and omitting to give a timely or sufficient warning or signal of the approach of the said train by blowing the whistle or ringing a bell, or otherwise, so as to enable the plaintiff's intestate to save himself from being run over by the said train, although the said train was behind its schedule and the defendants, their agents and servants knew or should have known that the approach thereof was not expected by the plaintiff's intestate at that time.

"(e) In causing and allowing the said train to cross a well traveled place known to the defendants, their agents and servants to be so well traveled without giving the signal or warning required to be given in such cases by the laws of the State of South Carolina.

"(f) In failing and omitting to cause the said train to slow down and to slacken the speed thereof within the yard limits of the defendant company while approaching and passing places along where persons and employees of the defendant company were accustomed to travel.

"(g) In failing and omitting to keep a proper lookout on the said train so as to be able to see plaintiff's intestate in time to avoid running him down and killing him.

"(h) In failing and omitting to take the proper precaution for the safety of the employees of the defendant company at a point where switching was known by the defendants, their agents and servants to be going on practically all the day.

"(i) In failing and omitting to furnish plaintiff's intestate with a reasonably safe place to work at, and in failing and omitting to provide sufficient space between the defendant company's tracks to enable its employees to safely board and alight from its trains while in the performance of their duties.

"(j) In failing and omitting to adopt proper rules and regulations for the protection of the employees of the defendant company at the place hereinabove set forth, and to provide them with a safe place to work at, and in not adopting proper measures to safeguard and protect the defendant company's employees, although the defendant company, its agents and servants had been duly warned of the danger and unsafe place at which the plaintiff's intestate was required to work, and at which point he was killed, and although the defendants, their agents and servants had known of the danger of such place, a number of other employees having been injured at or near the same point where the plaintiff's intestate was killed while performing their duties for the defendant company in the course of their employment.

"(k) In failing and omitting to have the road bed at or about the place where plaintiff's intestate was killed properly and sufficiently ballasted so as to provide a firm and secure footing for employees alighting from the trains of the defendant company in the performance of their duties.

"(l) In installing and maintaining a switch close to a curve of the defendant company's tracks at a point where the plaintiff's intestate was killed, causing the plaintiff's intestate to be thrown against the said switch after being run over by the aforesaid train.

"(m) In causing and permitting defendant company's right of way between the Etiwan Lead and the main track to be obstructed and screened by billboards, weeds, bushes,

and shrubbery, so as to deprive the defendant's employees working on trains operating at that point of a clear and unobstructed vision.

"(n) In failing and omitting to cause the land between defendant's main tracks and an important and frequently used spur track to be kept clear and free of billboards and shrubbery and other obstructions, so as to enable the employees of the defendant on a train approaching the main tracks along such spur track to see an approaching southbound train on the main track.

"(o) In failing and omitting to ring a bell or sound a whistle while approaching and crossing a public highway near the place at which plaintiff's intestate was struck and killed by the said train.

"5. That the above named intestate left him surviving his wife, Marcella Driggers, and a posthumous son, Leslie Allen Driggers, and a son William A. Driggers, Jr., who were deprived, by the death of plaintiff's intestate, of care, counsel, support and maintenance, and as to said minor sons, of training and education also, for all of which the said wife and sons were wholly dependent upon plaintiff's intestate.

"6. That the plaintiff, Marcella Driggers, was duly appointed administratrix of the Estate of William A. Driggers, deceased, and as such brings this action for the benefit of those entitled to recover thereunder.

"7. That all the said acts and omissions on the part of the defendants were negligently, carelessly, recklessly and wantonly done, and were in utter disregard of the safety of the said Driggers and those similarly situated with him, and they jointly and concurrently, caused the said injury and death of the said William A. Driggers, the said defendant company having owned, maintained and controlled the said train, and the said defendant, M. H. Brandt, having operated the same; all to the damage of the plaintiff in the sum of One Hundred Thousand ($100,000.00) Dollars.

"8. That at the aforesaid times and places, the abovenamed defendants and the plaintiff's intestate were engaged in interstate commerce.

"Wherefore the plaintiff herein prays judgment against the defendants in the sum of One Hundred Thousand ($100,000.00) Dollars, besides the costs of this action."

The answer of the defendants was as follows, omitting caption:

Answer of Defendants

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