Jenkins v. McCarthy

• Decision Date: 01 October 1895
• Citation: 22 S.E. 883,45 S.C. 278
• Parties: JENKINS v. McCARTHY.
• Court: South Carolina Supreme Court

22 S.E. 883

45 S.C. 278

JENKINS v. McCARTHY.

Supreme Court of South Carolina

October 1, 1895

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 Talbird 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 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 appealed upon the following grounds: (1) Because the circuit judge erred in deciding there was no evidence of negligence on the part of the defendant. (2) Because it was testified to that the piles would not have fallen had they been driven deep enough, and it was negligence and carelessness not to drive them sufficiently deep. (3) Because the circuit judge erred in confining the question of defendant's negligence to the means used in driving the piles; for, if said piles were not sufficiently driven to hold them fast while the space between them was being excavated, they were improperly driven, without reference to the means used. (4) Because there was evidence of negligence and carelessness on the part of the defendant, and it was error to grant the nonsuit.

The object of pleadings is to reach an issue or issues essential to plaintiff's cause of action or the defendant's defense thereto. The burden is placed upon the plaintiff to establish his cause of action. Now, what was plaintiff's cause of action in this instance? That the life of her husband had been lost through the negligence of the defendant in the careless and improper...