Gregory v. Powell, 15728.

• Citation: 33 S.E.2d. 629
• Decision Date: 02 April 1945
• Docket Number: No. 15728.,15728.
• Parties: GREGORY. v. POWELL et al.
• Court: United States State Supreme Court of South Carolina

33 S.E.2d. 629

GREGORY.
v.
POWELL et al.

No. 15728.

Supreme Court of South Carolina.

April 2, 1945.

Appeal from Common Pleas Circuit Court of Kershaw County; C. C. Feather-stone, Judge.

Separate actions by Lorene Bryce Gregory, administratrix of the estate of Claude Albert Gregory, deceased, against L. R. Powell, Jr., and Henry W. Anderson, as

[33 S.E.2d. 630]

receivers of the Seaboard Air Line Railway Company, and others to recover under Lord Campbell's Act and under the Survival Act for decedent's death. From an order applicable to both actions denying defendants' motions for change of venue, defendants appeal.

Reversed and remanded.

John D. Nock, of Cheraw, and H. L. Smith, of Georgetown, for appellants.

James E. Leppard and Jack Horton, both of Chesterfield, and Murdock M. Johnson, of Camden, for respondent.

OXNER, Justice.

This is an appeal from an order of the Circuit Court refusing motions made by appellants under Section 426, Code of 1942, for a change of venue from Kershaw County to Georgetown County, upon the ground that the convenience of witnesses and the ends of justice would be promoted by the change.

Claude Albert Gregory died as a result of injuries received on the night of December 13, 1940, when an automobile driven by him collided with a moving freight train of the Seaboard Air Line Railway Company at a crossing near Georgetown, South Carolina, on State Highway No. 521. Respondent, a resident of Kershaw County, as administratrix of his estate, instituted two actions in Kershaw County, one for wrongful death under the statute familiarly known as Lord Campbell's Act, Sections 411 and 412, Code of 1942, and the other under what is commonly referred to as the Survival Act, Section 419, Code of 1942. The action under Lord Campbell's Act was brought against the Railway Company and the conductor and brakeman on said train, while the other action was brought only against the Railway Company. It is alleged in the complaints that the death of resposdent's intestate was due to appellants' negligence and wilfulness in maintaining a dangerous crossing, failing to give the statutory signals, failing to keep a proper lookout, and failing to maintain a warning signal or flagman at the crossing. Appellants interposed a general denial and pleas of sole negligence, recklessness and wilfulness, and contributory negligence, recklessness and wilfulness on the part of respondent's intestate. For convenience the motions in both cases were heard together in the lower Court, with one order being filed applicable to both, and they are likewise consolidated and heard together in this Court.

The affidavits of appellants in support of the motions disclose the following: That the scene of the accident is 114 miles from Camden, the county scat of Kershaw County, and 4 miles from the Georgetown Court House; that appellants have twenty-two material witnesses, of whom twenty live in Georgetown County, and twelve of these...