Ellis v. Southern Ry. Co.

• Decision Date: 17 July 1908
• Docket Number: 689.
• Citation: 163 F. 686
• Parties: ELLIS v. SOUTHERN RY. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

163 F. 686

ELLIS v. SOUTHERN RY. CO.

No. 689.

United States Court of Appeals, Fourth Circuit.

July 17, 1908

J. P K. Bryan, for plaintiff in error.

Joseph W. Barnwell (B. L. Abney, on the brief), for defendant in error.

Before GOFF and PRITCHARD, Circuit Judges, and MORRIS, District Judge.

GOFF Circuit Judge.

This writ of error is prosecuted from a judgment rendered in the Circuit Court of the United States for the District of South Carolina. The suit was instituted by the plaintiff in error against the defendant in error for damages alleged to have been caused by the negligence of the Southern Railway Company, resulting in the death of W. J. Ellis. The plaintiff alleges: That the deceased, who was the husband of L. D Ellis, his administratrix, went to a regular station of the Southern Railway Company in South Carolina, known as Furman about 4 o'clock of the morning of March 3, 1902, for the purpose of becoming a passenger on one of the trains operated by that company; that said station is located near where that railroad crosses a public highway; that soon after he reached the station a passenger train then due to arrive appeared in sight, whereupon he-- said station being a signal station-- gave the usual sign for it to stop, and that those in charge of the train responded by the usual locomotive whistle indicating that the train would stop, but that they willfully, maliciously, wantonly, carelessly, and negligently ran the train by the station without first for 500 yards before reaching the public highway and station ringing the bell or sounding the whistle on the locomotive; that the train went by said station at an exceedingly high rate of speed, and willfully, maliciously, wantonly, carelessly, and negligently struck the person of said W. J. Ellis with some part of the locomotive, whereby he was instantly killed; that he left, surviving him, a wife and seven minor children, for whose benefit the suit was instituted and prosecuted. The answer of the defendant denied the allegations of the plaintiff, and alleged that the injury which caused the death of W. J. Ellis would not have occurred but for his negligence and his want of care in placing himself upon the track of the defendant's railway when its train was then due and approaching, and in remaining on said track where he could be struck, which said negligence contributed to his injury as the proximate cause thereof. The case came on regularly to be heard before the court and a jury, when, at the close of the testimony offered by the plaintiff below, the court, on motion of the defendant below, directed a verdict in its favor. The writ of error now under consideration was then sued out.

The testimony shows: That W. J. Ellis, intending to go from Furman, in South Carolina, to a point in Florida, desired to take passage on the fast train of the defendant from the north, which did not regularly stop at that station, but that under the rule of the company should stop there when duly flagged. That he drove in a buggy accompanied by two of his friends, about the hour of the morning mentioned in the complaint, to the public road where it crossed the railroad track about 140 yards to the north of Furman station. That they had started from said crossing going toward the station when the train was observed to be approaching, at which time he said to one of those with him, 'jump down and go across and wave the train,' when the party so requested-- this party being a witness at the trial-- jumped from the buggy, crossed to the sidetrack, and struck some matches which were applied to a roll of paper in the hands of the decedent, who by this time had joined him. That the blazing paper was waved over the track. That two whistles were sounded from the locomotive. That the decedent said 'Let's go to the station. They are going to stop for us. ' That the two then started down the track towards the station, Ellis, following behind the party so subsequently examined as a witness, saying to him three different times: 'Get off the track.' That the party so spoken to got off the track and walked the space between the main and the side track, which was from six to eight feet wide, and that he, alarmed, and not knowing which was the main track, sat down on the ground and was not injured. That the train did not stop, but passed by at a high rate of speed, striking the decedent, who was on the main track, and killing him instantly. That the point at which the body of Ellis was found was somewhere between 20 and 40 feet of the station, and near the...