Hayes v. Seabd. Air Dine Ry

• Decision Date: 10 March 1916
• Docket Number: (No. 9323.)
• Citation: 88 S.E. 268
• Court: South Carolina Supreme Court
• Parties: HAYES. v. SEABOARD AIR DINE RY. et al.

88 S.E. 268

HAYES.

v.SEABOARD AIR DINE RY. et al.

(No. 9323.)

Supreme Court of South Carolina.

March 10, 1916.

Gage, J., dissenting.

Appeal from Common Pleas Circuit Court of Lexington County; Frank B. Gary, Judge.

Action by Rosanna Hayes, as administratrix of the estate of Boliver Hayes, deceased, against the Seaboard Air Line Railway and another. Judgment for the plaintiff, and defendants appeal. Affirmed.

C. M. Efird, of Lexington, and Lyles & Lyles, of Columbia, for appellants.

Melton & Sturkie, of Columbia, for respondent.

FRASER, J. This is an action for damages, both actual and punitive, for the death of plaintiff's intestate. It appears from the record that the defendant operates a large yard and shops at Cayce, just across the river from Columbia; that a considerable portion of railroad is on top of a fill; that on this fill there are several openings for small streams and one for the street car track and one for the quarry track of another road; that the top of the fill Is wide and the railroad company has constructed a walkway for its employes, many of-whom work at Cayce and live in Columbia. The walkway is now constructed along the entire way from Cayce to Columbia. Where the cuts in the fill occur, footbridges with handrails are provided for the safety and convenience of employes. There is also evidence to show that many others besides the employes use this walkway without objection from the railroad company. At the time of the fatal accident there was no bridge at the opening for the quarry track, where the accident occurred, and nothing to warn a person of the opening, and that the deceased who was walking along the sidewalk at night fell into the opening and was so badly injured that he died in a few days. At the time of the accident, the railroad company were putting in the bridges for pedestrians, but the quarry track had not been bridged. What other bridges had been put in was a matter of dispute. There was also a dispute as to Whether steps were put in at another opening from the street below to the walkway on the fill. There were, however, steps out in the embankment which were in use. After the bridges were put in, this notice was put up at the bridges:

"Notice to Public.

"This bridge is provided solely for the use of employes while engaged in the performance of their duties. All other persons are warned not to trespass. Seaboard Air Line Railroad."

The case was tried, and a verdict and judgment for the plaintiff rendered. From this judgment this appeal is taken. The questions may be considered under two heads.

1. The appellant complains that in passing upon the motion for nonsuits and directions of verdicts, the presiding judge said that if there was a "scintilla" or "spark" of evidence, the case must be submitted to the jury, and that this is not the rule. In the recent case of Dutton v. Railroad, 88 S. E. 263 (just filed), it is said...