Everettt v. Bennettsville & C. R. Co

• Decision Date: 30 December 1913
• Citation: 80 S.E. 485,96 S.C. 299
• Court: South Carolina Supreme Court
• Parties: EVERETTT. v. BENNETTSVILLE & C. R. CO. et al.

80 S.E. 485

96 S.C. 299

EVERETTT.

v.BENNETTSVILLE & C. R. CO. et al.

Supreme Court of South Carolina.

Dec. 30, 1913.

1. Appeal and Error (§ 179*)—Review—Motion for New Trial—Exceptions.

Where, in an action against a railroad company and a lumber company for damages to plaintiff's timberland by fire, the jury returned a verdict for plaintiff for a specified sum against both defendants, finding that both set out the fires, and the railroad company moved to set aside that part of the verdict on the ground that there was no testimony to sustain it, but the motion did not seek to vacate the verdict as found in favor of plaintiff, and there were no exceptions to the charge raising the question as to plaintiff's right to recover against bothdefendants, the judgment as to plaintiff would be affirmed.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1137-1140; Dec. Dig. § 179.*]

2. New Trial (§ 59*) — Verdict — Definiteness—Separate Defendants.

In an action against a railroad company and a lumber company for setting out fires which damaged plaintiff's land, the court charged that the railroad company alone would be liable under the statute if it set out the fires, or at common law if it was guilty of negligence, or if. the lumber company, while operating trains over the railroad company's tracks under a contract, injured plaintiff's land by fire, but without negligence; also that the railroad company and the lumber company would be liable jointly if the lumber company, while operating under its contract, negligently injured the land by fire, but the lumber company under such circumstances would be primarily liable, and would be liable alone if, while on its own track, it negligently set out the fire. The jury returned a verdict assessing plaintiff's damages at a specified sum against both defendants, and specially found that both "set out the fires." Held, that the verdict was insufficient to determine the question of defendants' liability as between themselves, and for that purpose they were entitled to a new trial.

[Ed. Note.—For other cases, see New Trial, Cent. Dig. § 125; Dec. Dig. § 59.*]

Appeal from Common Pleas Circuit Court of Marlboro County; Geo. W. Gage, Judge.

"To be officially reported."

Action by Mary S. Everett against the Bennettsville & Cheraw Railroad Company and the Hickson Lumber Company. Judgment for plaintiff against both defendants, and the Bennettsville & Cheraw Railroad Company appeals. Reversed as between the defendants alone, and affirmed as to plaintiff.

Stevenson, Stevenson & Prince and J. K. Owens, of Bennettsville, for appellant.

D. D. McColl, of Bennettsville, for respondent.

GARY, C. J. This was an action for damages alleged to have been sustained by the plaintiff through the wrongful acts of the defendants in setting out fires on her lands.

The complaint contained four causes of action—the first and third against the railroad company alone, for damages to her land caused by fire, under the statute; the second and fourth against both defendants, for damages arising from negligence, also for damages caused by setting out fires on her land, under the statute.

The complaint alleged that there were two fires—one on the 7th of April, 1910, on 306 acres of land, for which damages were claimed in the sum of $1,377, and the other on the 14th of April, 1910, on 330 acres, for which the...