Goodwin v. Charleston & W.C. Ry.

• Decision Date: 18 April 1907
• Citation: 57 S.E. 530,76 S.C. 557
• Parties: GOODWIN v. CHARLESTON & W. C. RY.
• Court: South Carolina Supreme Court

57 S.E. 530

76 S.C. 557

GOODWIN v. CHARLESTON & W. C. RY.

Supreme Court of South Carolina

April 18, 1907

Appeal from Common Pleas Circuit Court of Abbeville County; Prince Judge.

Action by George M. Goodwin, administrator of George H. Burton against the Charleston & Western Carolina Railway. Judgment for defendant, and plaintiff appeals. Affirmed.

Wm. N Graydon, for appellant. S. J. Simpson and Wm. P. Greene, for respondent.

JONES J.

This action was brought by plaintiff as administrator to recover damages in the sum of $10,000 for the killing of plaintiff's intestate, George H. Burton, by the negligent acts of defendant. From judgment for defendant, plaintiff appeals.

The "case" states as follows: "The testimony introduced on behalf of the plaintiff tended to show that the deceased, George H. Burton, had been to church the night he was killed, and was on his road home. He was last seen about 150 yards from the crossing, and a short while afterwards he was found dead on the track of the defendant company about 30 yards below the crossing about 10 o'clock at night, with one foot cut off. There was also testimony on behalf of the plaintiff that the deceased was killed by a freight engine and that there was no signal given for the crossing, and that the train had no lights. The testimony showed that he was killed on Sunday night. Testimony for the defendant tended to show that the deceased, George H. Burton, was drunk the afternoon of the day he was killed about 7 o'clock. The engineer testified that he was not moving his engine for any purpose except to go to the water tank to get water for it; it being customary to keep fire in engine from Saturday until Monday, making water necessary. He testified that he rang the bell, blew the whistle, had the headlight burning, and, in addition to that, he had a red fusee burning on the engine. He testified that he saw no one on the track, and that he did not know that the engine had run over any one until he got to the tank, when the matter was called to his attention, and that as he went back from the tank to the depot he stopped and saw the man lying near the track dead. He testified that it was 9:20 o'clock on Sunday, the 4th day of September, 1904. The defendant's flagman testified that he was on the engine going down to the tank to get water, and that there was another engine just ahead of the engine on which he was riding, and testified that he saw some one on the side of the track, and called the matter to the attention of the engineer when they got to the water tank, and that as they went back to the depot they saw it was a dead man. The testimony for the defendant also showed that it was 60 yards from the crossing to where the deceased was found by the railroad track. The testimony of the defendant's witnesses also showed that there was something like blood or marrow on the upright piece of timber of the pilot of the engine."

The court charged the jury that in order to find for the plaintiff under the complaint they must be satisfied by the preponderance of the evidence that the deceased was struck at a crossing as a result of some act of negligence alleged.

Seven of appellant's nine exceptions are to the charge of the circuit court, and two to the refusal of the motion for new trial; but they really raise only one question--whether under a proper construction of the complaint...