Harbert v. Atlanta & C. Air Line Ry. Co

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: WOODS, J
• Citation: 53 S.E. 1001,74 s. c. 13
• Decision Date: 04 April 1906
• Parties: HARBERT. v. ATLANTA & C. AIR LINE RY. CO.

53 S.E. 1001
74 s. c. 13

HARBERT.
v.
ATLANTA & C. AIR LINE RY. CO.

Supreme Court of South Carolina.

April 4, 1906.

1. Railroads—Accident at Crossing—Op-eration by Another Company.

A railroad company cannot avoid its obligation to the public as a chartered road by turning over the operation of its road to another railroad company so as to escape liability for negligence at a railroad crossing.

[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 440, 817, 824.]

2. Appeal—Appealable Orders.

Under Code Civ. Proc. 1902, § 11, subd. 2, providing for appeals from certain orders, an order refusing to strike out allegations in a pleading as irrelevant is not appealable.

Appeal from Common Pleas Circuit Court of Oconee County; Dantzler, Judge.

Action by James J. Harbert against the Atlanta & Charlotte Air Line Railway Company. From an order refusing to strike out allegations of answer, plaintiff appeals. Affirmed.

Stribling & Herndon, for appellant.

T. P. Cothran, for respondent.

WOODS, J. This is an action to recover damages for the alleged killing of James A. Harbert at a highway crossing over defendant's line of railway, near Ft. Madison, in Oconee county. The complaint alleged that the defendant, under a charter from the state, was, on February 24, 1901, the owner of the line of railway on which the killing occurred; and that the railroad was at that time operated as a common carrier, and had been so operated for many years. It further alleged that on February 24, 1901, "the defendant, its servants and agents, having in their care, control, and management a certain locomotive engine and train of cars thereto attached, carelessly, negligently, recklessly, and willfully" ran the train of cars over and killed Harbert. The specific act of negligent and willful wrong charged against the defendant was the failure to give the statutory signals at the crossing. The defendant admitted the allegations of the complaint as to its ownership of the railroad under its charter, and as to the operation of the railroad as a common carrier. In the third paragraph of the answer the defendant, after admitting the charter, continues: "But denies that it was, at the time mentioned in said complaint, a common carrier of goods and passengers, or that it was operating or controlling any railroad cars, locomotives, or trains in the state of South Carolina." The fourth paragraph was as follows: "The defendant alleges that if the plaintiff's intestate was killed,...