Jenkins v. Southern Ry.-Carolina Division
Decision Date | 20 September 1929 |
Docket Number | 12732. |
Citation | 150 S.E. 128,152 S.C. 386 |
Parties | JENKINS v. SOUTHERN RY.-CAROLINA DIVISION. |
Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Charleston County; W. H Townsend, Judge.
Action by Eva V. Jenkins, as administratrix of Otis L. Jenkins against the Southern Railway-Carolina Division. Judgment for plaintiff, and defendant appeals. Affirmed.
The exceptions of appellant are as follows:
Barnwell and Black, of Charleston, and Frank G. Tompkins, of Columbia, for appellant.
Thos. P. Stoney, A. R. McGowan, and J. D. E. Meyer, all of Charleston, for respondent.
This is an action in tort, growing out of the death of Otis L. Jenkins, plaintiff's intestate, who, while riding on an engine of one of the defendant's trains, was killed in a head-on collision, occurring on the night of October 30, 1926, near Kingsville, this state. In the complaint, the defendant was charged with several acts of negligence, one being that the engineer of the train, which the intestate was firing at the time of his death, was asleep. The employment of Jenkins at the time by the defendant as a fireman, engaged in interstate commerce, was also alleged, and it was set forth in the complaint that the suit was brought under the provisions of the Federal Employers' Liability Act (45 USCA § § 51-59). The plaintiff also set up in his complaint allegations to the effect that the death of the intestate was due to, and caused by the recklessness, willfulness, and wantonness of the defendant, and its agents and servants.
The defendant, in its answer, alleged that the intestate was not its employee at the time of his injuries and death, but that he was riding on the engine without authority and in violation of law, "and was a trespasser, and that under the law no duty was owing to him in the operation of the said train except not to injure him willfully, when discovered, and this defendant denies that the injuries complained of were due to any willfulness or negligence on the part of this defendant."
The trial in the court of common pleas of Charleston county, with Hon. W. H. Townsend, circuit judge, presiding, resulted in a verdict against the defendant for $10,000 actual damages and $5,000 punitive damages.
For the purpose of making certain and clear the issues involved in the case, and to have this certainty reflected in the verdict, the court required the jury to make special findings in addition to their general verdict. In answer to specific questions prepared and submitted by the court, the jury found: First, the plaintiff's intestate was not in the employ of the defendant when he was killed. Second, his death was proximately caused by the negligence and willfulness of the defendant. Third, he was not guilty of contributory negligence.
There was ample evidence, in our opinion, to sustain the findings made by the jury and the verdict rendered.
The testimony on the part of the defendant showed that Jenkins had been a student fireman, had completed his apprenticeship and, previous to the accident, had made a few trips as a fireman, for which he had received pay. On the trip in which he lost his life, he was not acting under orders, but, without obtaining proper permit therefor, and in violation of the rules of the defendant, he volunteered his services to the regular fireman and...
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