Ellis v. Southern Ry. Co.

• Decision Date: 18 October 1905
• Citation: 52 S.E. 228,72 S.C. 465
• Parties: ELLIS v. SOUTHERN RY. CO. et al.
• Court: South Carolina Supreme Court

52 S.E. 228

72 S.C. 465

ELLIS v. SOUTHERN RY. CO. et al.

Supreme Court of South Carolina

October 18, 1905

Appeal from Common Pleas Circuit Court of Hampton County; Klugh Judge.

Action by I. D. Ellis, administratrix of W. J. Ellis against the Southern Railway Company and P. I. Welles. From an order overruling a demurrer to the complaint, Welles appeals. Reversed.

The following is the complaint:

"The complaint of the above-named plaintiff, L. D Ellis, as administratrix of estate of W. J. Ellis, and in her own behalf and in behalf of the children of the said W. J Ellis, deceased, respectfully shows to this court:

(1) That at the times hereinafter mentioned the defendant Southern Railway Company was and is now a railway corporation, duly chartered and existing under and by the laws of the state of South Carolina, and as such is and was operating a railway from the town of Batesburg, in the county of Lexington, and through the counties of Aiken, Barnwell and Hampton, to the station of Hardeeville, in Hampton county, and elsewhere in this state, and as said railway corporation so operating was engaged in the hauling of freight and passengers for hire to and from said points and elsewhere in this state, and the defendant P. I. Welles was at the time hereinafter mentioned the agent and servant of the said codefendant, and as such was in exclusive charge of the operation and management of the said Southern Railway Company, and still is operating the said railway in behalf of his codefendant, the Southern Railway Company, and as such agent so operating the said railway was and still is liable for acts and doings of the railway company aforesaid.

(2) That on or about the 3d day of March, 1902, at about 4 o'clock of the morning of that day, W. J. Ellis went to a station on the railway of defendant the Southern Railway Company known as Furman, in Hampton county, S. C., where the said railway crosses one of the public highways of said county of Hampton, for the purpose of getting on one of the passenger cars owned and operated by the defendant, the Southern Railway Company, on its said railway, and becoming a passenger thereon, intending to go to his place of business at Summerfield, Fla.; and that soon after getting to said station the regular train of cars, then due to arrive at said station on defendant's railway, appeared in sight with an exceedingly dim headlight on the locomotive attached to said passenger cars of said defendant's company, whereupon and immediately afterwards the said W. J. Ellis lighted with fire some combustible material, and gave across the railway track aforesaid the usual and customary signal for the train of cars aforesaid to stop, whereupon the agent and servants of defendant's railway company aforesaid in charge of said passenger cars and locomotive on the railway track of defendant's company aforesaid, gave with the whistle on the locomotive attached to the passenger cars aforesaid the usual and customary signal to stop, but, instead of stopping the said passenger cars aforesaid, as they were in duty bound to do, the agents, servants and employès of the defendant's company aforesaid, willfully, maliciously negligently, carelessly, and wantonly ran, or caused the passenger cars and locomotive aforesaid to run, by the station aforesaid across the public highway aforesaid at an exceedingly high rate of speed, without first continuously for 500 yards before reaching the public highway and station aforesaid ringing the bell or sounding the whistle on the locomotive and train of cars aforesaid on the railway track aforesaid, and willfully, maliciously, negligently, carelessly, and wantonly struck or caused to be struck the person of W. J. Ellis with some parts of the locomotive and train of cars aforesaid on the railway track of defendant's company aforesaid, wounding and instantly killing the said W. J. Ellis.

(3) That by reason of these willful, careless, negligent, malicious, and wanton acts of the defendant's company, and the killing of the said W. J. Ellis as aforesaid, this plaintiff and the heirs at law of the said W. J. Ellis have been damaged in the sum of $50,000.

(4) The plaintiff is the duly qualified administratrix of the estate and effects of W. J. Ellis, deceased.

Wherefore plaintiff demands judgment in her own behalf and in behalf of the heirs at law of the heirs of the said W. J. Ellis in the sum of $50,000, with the cost of this action." Defendant Welles appeals on the following exceptions: "First. To the order permitting amendment: (1) Because it is respectfully submitted that his honor, the presiding judge, J. C. Klugh, erred in permitting the plaintiff to amend her complaint, inasmuch as the said complaint did not state the beneficiaries for whose benefit the action was brought, and therefore did not state any cause of action; and his honor therefore was without authority to permit an amendment to said complaint, in order that it might state such a cause of action.

"Second. To the order overruling the demurrer of the defendant, P. I. Welles: (1) Because it is respectfully submitted that his honor, the presiding judge, erred in not deciding that inasmuch as it appeared upon the face of the complaint that this appellant was an agent and servant of his codefendant, the Southern Railway Company, and that the willful, malicious, negligent, careless, and wanton conduct alleged to have caused the death of plaintiff's intestate, was not committed in the presence of this defendant, but through the willful, malicious, negligent, careless, and wanton conduct of the agents and servants of the said railway company, in charge of a passenger train of cars and locomotive engine upon said company's road, at a station at which the said W. J. Ellis desired to take passage, and where it is not alleged that this defendant was present, then this defendant not being the master or employer of the persons in charge of said train, is not responsible for their actions, under the doctrine of respondeat superior, and no cause of action is alleged against this defendant. (2) Because it appears upon the face of said complaint that the conduct of the persons in charge of said train was the cause of the injury to plaintiff's intestate, and it is not alleged that the plaintiff was upon their said train, directing the movements and actions of the persons upon said train, and this defendant is not liable for their conduct; the same not being alleged to have occurred through the misfeasance or positive

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