Fell v. Charleston

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtSimpson
Citation33 S.C. 198,11 S.E. 691
Decision Date28 June 1890
PartiesFell. 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,...

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11 practice notes
  • Miller v. Atl. Coast Line R. Co, (No. 12063.)
    • United States
    • United States State Supreme Court of South Carolina
    • September 10, 1926
    ...in the later case of Sutton v. Railroad Co., 82 S. E. 345, 64 S. E. 401, where the above question is adopted. In Fell v. Railroad Co., 33 S. C. 198, 11 S. E. 691, the court held that, where there was an entire absence of evidence as to the only act of negligence alleged in the complaint as ......
  • Durst v. Southern Ry. Co, (No. 11629.)
    • United States
    • United States State Supreme Court of South Carolina
    • December 10, 1924
    ...a specific act the basis of his charge of negligence, he is confined to evidence tending to sustain that charge. Fell v. Railroad Co., 33 S. C. 198, 11 S. E. 691; Jenkins v. McCarthy, 45 S. C. 278, 22 S. E. 883; Brown v. Railroad Co., 57 S. C. 435, 35 S. E. 731; Sutton v. Railroad Co., 82 S......
  • Atlantic Coast Line R. Co. v. Farmer, 824.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • November 4, 1909
    ...complained of resulted from such negligence, there was no error in granting the nonsuit. To the same effect, see Fell v. Railroad Co., 33 S.C. 198, 11 S.E. 691, and Jenkins v. McCarthy, 45 S.C. 278, 22 S.E. 883, where Mr. Justice Pope, in delivering the opinion of the court, well said: 'It ......
  • Sutton v. Southern Ry. Co
    • United States
    • United States State Supreme Court of South Carolina
    • April 9, 1909
    ...alleges specific acts of negligence, the plaintiff is restricted to proof of such acts of negligence (Fell v. Railroad Co., 33 S. C. 19S, 11 S. E. 691; Jenkins v. McCarthy, 45 S. C. 278, 22 S. E. 883; Brown v. Railroad Co., 57 S. C. 435, 35 S. E. 731). So, when a complaint contains allegati......
  • Request a trial to view additional results
11 cases
  • Miller v. Atl. Coast Line R. Co, (No. 12063.)
    • United States
    • United States State Supreme Court of South Carolina
    • September 10, 1926
    ...in the later case of Sutton v. Railroad Co., 82 S. E. 345, 64 S. E. 401, where the above question is adopted. In Fell v. Railroad Co., 33 S. C. 198, 11 S. E. 691, the court held that, where there was an entire absence of evidence as to the only act of negligence alleged in the complaint as ......
  • Durst v. Southern Ry. Co, (No. 11629.)
    • United States
    • United States State Supreme Court of South Carolina
    • December 10, 1924
    ...a specific act the basis of his charge of negligence, he is confined to evidence tending to sustain that charge. Fell v. Railroad Co., 33 S. C. 198, 11 S. E. 691; Jenkins v. McCarthy, 45 S. C. 278, 22 S. E. 883; Brown v. Railroad Co., 57 S. C. 435, 35 S. E. 731; Sutton v. Railroad Co., 82 S......
  • Atlantic Coast Line R. Co. v. Farmer, 824.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • November 4, 1909
    ...complained of resulted from such negligence, there was no error in granting the nonsuit. To the same effect, see Fell v. Railroad Co., 33 S.C. 198, 11 S.E. 691, and Jenkins v. McCarthy, 45 S.C. 278, 22 S.E. 883, where Mr. Justice Pope, in delivering the opinion of the court, well said: 'It ......
  • Sutton v. Southern Ry. Co
    • United States
    • United States State Supreme Court of South Carolina
    • April 9, 1909
    ...alleges specific acts of negligence, the plaintiff is restricted to proof of such acts of negligence (Fell v. Railroad Co., 33 S. C. 19S, 11 S. E. 691; Jenkins v. McCarthy, 45 S. C. 278, 22 S. E. 883; Brown v. Railroad Co., 57 S. C. 435, 35 S. E. 731). So, when a complaint contains allegati......
  • Request a trial to view additional results

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