Jenkins v. Atlantic Coast Line R. Co.

Decision Date31 July 1911
Citation71 S.E. 1010,89 S.C. 408
CourtSouth Carolina Supreme Court

Appeal from Common Pleas Circuit Court of Greenville County; R. C Watts, Judge.

Action by P. A. H. Jenkins against the Atlantic Coast Line Railroad Company. From a judgment overruling a motion to strike out a certain defense and overruling a plea to the jurisdiction both parties appeal. Reversed.

J. J McSwain, for plaintiff. P. A. Willcox and L. W. McLemore, for defendant.


The defendant operates a passenger train between Charleston and Greenville. Between Charleston and Columbia, it is run over defendant's own road. Between Columbia and Laurens, it is run over the road of the Columbia, Newberry & Laurens Railroad Company, and between Laurens and Greenville it is run over the road of the Charleston & Western Carolina Railway Company. On September 7, 1908, plaintiff's wife became a passenger on said train at Newberry, for Greenville. The train was wrecked between Newberry and Laurens, and she was injured. The plaintiff brought an action in the circuit court for Laurens county against the Columbia, Newberry & Laurens Railroad Company to recover damages resulting to him for her injury. The case was tried on the merits, and the judgment was in favor of the railroad company. Thereafter the plaintiff brought this action, in the circuit court for Greenville county, against this defendant for the same cause. The defendant pleaded to the jurisdiction of the court, alleging that Greenville was not the county of its residence, and praying that the action be dismissed, or, failing in that, that it be transferred to the proper county for trial. The plea to the jurisdiction having been overruled and the motion to transfer refused, defendant answered and pleaded as its second defense the judgment rendered in the action between this plaintiff and the Columbia, Newberry & Laurens in bar of this action. In connection with that plea, defendant alleged that at the time of the injury the train upon which plaintiff's wife was riding was leased to and operated by the Columbia, Newberry & Laurens, and exhibited a copy of the agreement under which the train was operated; and also that, under the terms of their agreement, the Columbia, Newberry & Laurens was and is primarily and solely responsible for any and all damages or injuries arising out of the operation of said train, while on its railroad, and is liable over to this defendant for any sum or sums that may be recovered of it on account of any such injury.

The plaintiff moved upon the record to strike out the second defense. The motion may be regarded as a demurrer to that defense. Numerous grounds are stated in the motion, but in substance they all amount to the same thing--that the judgment in that case is no bar to this action. The court ruled that the former action was not a bar to this action, but refused to strike out the second defense, on the ground that it would be competent for defendant to show that plaintiff had sought to hold another party liable for the same injury. The plaintiff appealed, assigning error in the refusal to strike out the second defense. The defendant also appealed, assigning error in refusing its motion to transfer the cause to the proper county for trial, on the ground that the court in Greenville has no jurisdiction, because defendant is not a resident of that county, and in holding that the judgment pleaded was not a bar to this action.

The ruling that the Laurens judgment was not a bar to this action and the refusal to strike out the plea of that judgment, as a bar, is inconsistent. If it is not a bar, it is irrelevant matter, and should have been stricken out.

There was no error in refusing the motion to transfer the case. The court in Greenville has jurisdiction to try it. Rafield v. Railway Co., 86 S.C. 324, 68 S.E. 634; Dennis v. Railway Co., 86 S.C. 258, 68 S.E. 465. Under the terms of the contract between defendant and the Columbia, Newberry & Laurens, the train, which was owned and equipped by defendant, manned by its own crew, and run under the direction and control of its own conductor, was operated by defendant.

The proper construction of the contract makes the Columbia Newberry & Laurens the lessor and defendant the lessee of the right to run defendant's trains over the tracks of the Columbia, Newberry & Laurens. The fact that, by the terms of the contract, the Columbia, Newberry & Laurens is as between it and defendant, primarily liable for all injuries occurring in the operation of said trains, while on its tracks, and liable over to defendant for any and all sums that may be recovered from it on account of such...

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