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

• Decision Date: 04 April 1906
• Citation: 53 S.E. 1001,74 S.C. 13
• Parties: HARBERT v. ATLANTA & C. AIR LINE RY. CO.
• Court: South Carolina Supreme Court

53 S.E. 1001

74 S.C. 13

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

Supreme Court of South Carolina

April 4, 1906

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, that his death was caused by a train of the Southern Railway Company." The appeal is from an order of the circuit judge refusing the motion of the plaintiff to strike out the fourth paragraph entirely and the portion of the third paragraph above quoted as irrelevant and redundant.

1. The question involved in this appeal was decided in the case of Smalley v. Ry. Co. (S. C.) 53 S.E. 1000. The defendant could not avoid its obligations to the public as a chartered railroad company by turning over the operation of its road...