Fell v. Charleston

• Citation: 33 S.C. 198,11 S.E. 691
• Court: United States State Supreme Court of South Carolina
• Decision Date: 28 June 1890
• Parties: Fell. v. Charleston, C. & C. R. Co.

11 S.E. 691

33 S.C. 198

Fell.

v.Charleston, C. & C. R. Co.

Supreme Court of South Carolina.

June 28, 1890.

Nonsuit—Evidence.

Where there is an entire absence of evidence as to all or any material fact or facts in the case necessary to be proved in order for the plaintiff to recover, a nonsuit should be ordered.

Appeal from common pleas circuit court of Kershaw county; Norton, Judge.

Jas. F. Hart and P. H. Nelson, for appellant.

Abuey & Thomas and J. T. Hay, for respondent.

Simpson, C. J. W. D. Fell was killed while running a train as engineer on the railroad track of defendant. There was an issue made in the pleadings as to whether the said Fell was in the employment of the defendant, or of Taylor & Elmer, a firm employed in laying the track of said road at the time of the accident. But this question, from the view which we take of the case, is not material, and need not be further referred to. The action below was brought by the plaintiff, as administratrix of W. D. Fell, to recover damages under the act in such case made and provided. A verdict was rendered for the plaintiff for $2,500. The defendant has appealed upon 23 exceptions. But we have not found it necessary to consider any of these except the first, which is that his honor erred in refusing a motion for a nonsuit made by the defendant at the close of the plaintiff's testimony. This meets us at the threshold, and as, after a thorough examination, we have reached the conclusion that this motion should have been granted, the questions raised in the other exceptions are not properly before us, as the case should have ended, in our opinion, before they were reached below.

The accident occurred at a certain point on the track upon which certain cars had been left standing, or were found standing, on the morning of the 12th day of March, 1888, and with which the train under the control of the said Fell collided, causing an injury to him, from which he very soon thereafter died, and the negligence alleged in the complaint was as follows, to-wit: "That said negligence and want of due and proper care consisted in this: The southern or lower end of the side track or siding, at or near the said point known as 'Gum Swamp, ' was defectively and improperly constructed, in that it had no guard or switch to obstruct and prevent cars left upon or in said siding from moving or escaping therefrom at its southern or lower end to and upon the main track of defendant's road; or it had such a defective one, easily removed, and not permanent, and attached to the track, that it could not, and did not, obstruct and prevent said cars from leaving said siding as aforesaid; instead of which, defendant should have built and constructed at said lower end of said siding a permanent, safe, and secure guard or switch to retain the cars within said siding when left there. And when...