Jenkins v. Mccarthy

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtPOPE
Citation45 S.C. 278,22 S.E. 883
Decision Date01 October 1895
Partiesjenkins. v. McCarthy.

22 S.E. 883
45 S.C. 278

jenkins.
v.
McCarthy.

Supreme Court of South Carolina.

Oct. 1, 1895.


Negligence—Pleading—Issue.

In an action for injury to an employe engaged in making an excavation, caused by the falling of one of the piles put around the place to be excavated, the complaint alleging as negligence that the piles were "carelessly and improperly driven, " and this being denied, the issue is not whether they were driven sufficiently deep, but whether they were driven carefully and properly.

Appeal from common pleas circuit court of Beaufort county; Ernest Gary, Judge.

Action by Nancy Jenkins, as administratrix of the estate of Joseph Jenkins, deceased, against Justin McCarthy. Judgment for defendant. Plaintiff appeals. Affirmed.

W. J. Verdier, for appellant.

Thomas Tal-bird and Elliott & Elliott, for respondent.

POPE, J. This action came on for trial before his honor, Judge Ernest Gary, and a jury, at the February term, 1895, of the court of common pleas for Beaufort county, in this state. It seems that one Joseph Jenkins, while laboring for the defendant in making excavations between piling at or connected with the naval dry dock at Paris Island, in the county of Beaufort, in 1894, was killed by the falling in of two piles. The plaintiff, as his widow, secured letters of administration, and under the act of the legislature of this state commenced an action against said defendant for $7,000 damages, alleging that the cause of the death of her intestate was the careless and improper driving of some large piles. To be accurate, we will reproduce the third paragraph of the complaint, as this is the only allegation of the complaint bearing on this

[22 S.E. 884]

particular point: "(3) That for the purpose of such excavation the defendant had driven around the space to be excavated a number of large piles; that said piles were so carelessly and improperly driven, and the defendant had so negligently conducted himself in such behalf, that while said Joseph Jenkins was so engaged in excavating as aforesaid, on the 7th day of May, 1894, one of said piles fell into said excavation or culvert, and struck and instantly killed the said Joseph Jenkins." This was the only contested point, and to this the plaintiff directed her testimony. When she closed such testimony, defendant moved for a nonsuit The circuit judge, in granting the motion, said: "Now, what is the charge of negligence? It is in driving said piles. What is the proof as to how they were driven, whether carefully or not? The witness testified that they were driven with a steam hammer. There is no proof before this jury whether that is the proper way to drive them or not. Therefore I must assume, till negligence has been proven, that they have been driven in the proper manner. There is no evidence how piles shall be driven, or what is the prescribed form of driving piles. So far as that jury knows, or as I know, if these piles were to be driven again they would be driven just as they were driven. There is no proof of negligence, and for that reason there is no issue of negligence to submit to the jury, and I will grant the nonsuit." After judgment was entered, the plaintiff...

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11 practice notes
  • Miller v. Atl. Coast Line R. Co, (No. 12063.)
    • United States
    • United States State Supreme Court of South Carolina
    • September 10, 1926
    ...the only act of negligence alleged in the complaint as the ground of the plaintiff's action, a nonsuit was proper. In Jenkins v. McCarthy, 45 S. C. 278, 22 S. E. 883, the plaintiff was strictly confined to the sole act of negligence alleged in the complaint. In McKain v. Water Co., 89 S. C.......
  • Durst v. Southern Ry. Co, (No. 11629.)
    • United States
    • United States State Supreme Court of South Carolina
    • December 10, 1924
    ...he is confined to evidence tending to sustain that charge. Fell v. Railroad Co., 33 S. C. 198, 11 S. E. 691; Jenkins v. McCarthy, 45 S. C. 278, 22 S. E. 883; Brown v. Railroad Co., 57 S. C. 435, 35 S. E. 731; Sutton v. Railroad Co., 82 S. C. 345, 64 S. E. 401; King v. Railroad Co., 6 Idaho,......
  • Atlantic Coast Line R. Co. v. Farmer, 824.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • November 4, 1909
    ...was no error in granting the nonsuit. To the same effect, see Fell v. Railroad Co., 33 S.C. 198, 11 S.E. 691, and Jenkins v. McCarthy, 45 S.C. 278, 22 S.E. 883, where Mr. Justice Pope, in delivering the opinion of the court, well said: 'It would be hazardous to litigants, when brought into ......
  • Sutton v. Southern Ry. Co
    • United States
    • United States State Supreme Court of South Carolina
    • April 9, 1909
    ...the plaintiff is restricted to proof of such acts of negligence (Fell v. Railroad Co., 33 S. C. 19S, 11 S. E. 691; Jenkins v. McCarthy, 45 S. C. 278, 22 S. E. 883; Brown v. Railroad Co., 57 S. C. 435, 35 S. E. 731). So, when a complaint contains allegations of specific acts of negligence an......
  • Request a trial to view additional results
11 cases
  • Miller v. Atl. Coast Line R. Co, (No. 12063.)
    • United States
    • United States State Supreme Court of South Carolina
    • September 10, 1926
    ...the only act of negligence alleged in the complaint as the ground of the plaintiff's action, a nonsuit was proper. In Jenkins v. McCarthy, 45 S. C. 278, 22 S. E. 883, the plaintiff was strictly confined to the sole act of negligence alleged in the complaint. In McKain v. Water Co., 89 S. C.......
  • Durst v. Southern Ry. Co, (No. 11629.)
    • United States
    • United States State Supreme Court of South Carolina
    • December 10, 1924
    ...he is confined to evidence tending to sustain that charge. Fell v. Railroad Co., 33 S. C. 198, 11 S. E. 691; Jenkins v. McCarthy, 45 S. C. 278, 22 S. E. 883; Brown v. Railroad Co., 57 S. C. 435, 35 S. E. 731; Sutton v. Railroad Co., 82 S. C. 345, 64 S. E. 401; King v. Railroad Co., 6 Idaho,......
  • Atlantic Coast Line R. Co. v. Farmer, 824.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • November 4, 1909
    ...was no error in granting the nonsuit. To the same effect, see Fell v. Railroad Co., 33 S.C. 198, 11 S.E. 691, and Jenkins v. McCarthy, 45 S.C. 278, 22 S.E. 883, where Mr. Justice Pope, in delivering the opinion of the court, well said: 'It would be hazardous to litigants, when brought into ......
  • Sutton v. Southern Ry. Co
    • United States
    • United States State Supreme Court of South Carolina
    • April 9, 1909
    ...the plaintiff is restricted to proof of such acts of negligence (Fell v. Railroad Co., 33 S. C. 19S, 11 S. E. 691; Jenkins v. McCarthy, 45 S. C. 278, 22 S. E. 883; Brown v. Railroad Co., 57 S. C. 435, 35 S. E. 731). So, when a complaint contains allegations of specific acts of negligence an......
  • Request a trial to view additional results

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