Easterling v. Atlantic Coast Line R. Co.

• Citation: 75 S.E. 133,91 S.C. 546
• Parties: EASTERLING v. ATLANTIC COAST LINE R. CO. et al.
• Decision Date: 01 July 1912
• Court: United States State Supreme Court of South Carolina

75 S.E. 133

91 S.C. 546

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

Supreme Court of South Carolina

July 1, 1912

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

"To be officially reported."

Action by Ann C. Easterling, administratrix of J. B. Easterling against the Atlantic Coast Line Railroad Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Mordecai & Gadsden and Rutledge & Hagood, both of Charleston, and Legare Walker, of Summerville, for appellants. Logan & Grace of Charleston, for respondent.

HYDRICK J.

The exceptions raise only two questions: (1) Was this action brought under section 2132, vol. 1, Code 1902? (2) Did the court err in refusing to direct the verdict for defendants?

Section 2132, so far as applicable to this case, reads: "A bell of at least thirty pounds weight and a steam whistle shall be placed on each locomotive engine, and such bell shall be rung, or such whistle sounded, by the engineer or fireman, at a distance of at least five hundred yards from the place where the railroad crosses any public highway or street or travelled place, and be kept ringing or whistling until the engine has crossed such highway or street or travelled place."

The complaint charges, in paragraph 4, that Easterling "was crossing a public crossing and traveled place," when he was struck and killed by an engine and train of cars operated by the defendant railroad company. In paragraph 5 it is alleged that his death was caused by the negligence recklessness, and wantonness of the defendants in "failing and omitting to give any signal by ringing the bell or sounding the whistle, or in any other way whatsoever of the approach of said locomotive and train of cars to said public crossing or traveled place." These allegations are clearly sufficient to bring the case under the statute. The answer of defendants and the course of the trial clearly show that defendants were fully apprised of the fact that plaintiff intended to rely upon the statute. But if the allegations were so indefinite as to leave the matter in doubt, their remedy was by motion to make the complaint more definite and certain. Lee v. Railroad Co., 84 S.C. 140, 65 S.E. 1031.

There was abundant testimony to carry the case to the jury and to sustain the verdict. There was positive testimony that the crossing signals were not given. This was sufficient to compel...