Lampley v. Atlantic Coast Line R. Co.

• Citation: 57 S.E. 1104,77 S.C. 319
• Parties: LAMPLEY v. ATLANTIC COAST LINE R. CO.
• Decision Date: 10 July 1907
• Court: United States State Supreme Court of South Carolina

57 S.E. 1104

77 S.C. 319

LAMPLEY v. ATLANTIC COAST LINE R. CO.

Supreme Court of South Carolina

July 10, 1907

Appeal from Common Pleas Circuit Court of Darlington County; Klugh Judge.

Action by John C. Lampley against the Atlantic Coast Line Railroad Company. Verdict for defendant. From an order granting a new trial, defendant appeals. Dismissed.

P. A Willcox and Woods & Macfarlan, for appellant. Geo. W. Brown and Stevenson, Matheson & Stevenson, for respondent.

POPE C.J.

In the year 1899 the plaintiff herein, John C. Lampley, began this action against the defendant railroad company for the loss of his oat crop and certain damage to his property, alleged to have been caused by the negligent construction of its railroad. The lands in question are situated in Darlington county in what is known as "Roblyns Neck," a horseshoe-shaped projection formed by a curve of the Peedee river. At this point the river for some distance swerves from its regular course towards the sea, and takes an easterly direction until it strikes Hunt's Bluff, on the Marlboro side, and is here turned back in a westerly direction, thus making the toe of the horse shoe opposite Marlboro. This whole neck is lowland, and in time of freshets is subject to overflow; the water taking a direct course across the neck, instead of flowing around. Years ago in order to prevent overflows, levees were built around the neck. In 1875, however, a flood of unprecedented size broke through, and since that time, according to the testimony farming there has been attended with more or less risk of loss. The railroad enters this neck at the part corresponding to the heel of the horseshoe, and passes out at the toe, where it crosses the river to the Marlboro side. It runs through plaintiff's lands and divides them, leaving a portion of them on the upper side and the other part on the lower side. The road on the Darlington side is to a large extent laid on embankments of earth; there being, according to the evidence, only about 10 per cent. trestle work. It is in this that the plaintiff alleges negligence on the part of the defendant. He complains that the road, not having sufficient trestle work, in the year 1899 held the water on his land longer than it would have remained otherwise, and thus destroyed his oat crop, and also, that by reason of insufficient outlets a head of water was collected, and as a result of the pressure his land was scoured and to a large extent rendered valueless. The case has given rise to much litigation. Twice has the jury found a verdict for the plaintiff, and as many times has this court sent it back for a new trial. 63 S.C. 462, 41 S.E. 517; 71 S.C. 156, 50 S.E. 773. The last hearing was before Judge J. C. Klugh at the November, 1906, term of court for Darlington county. The result was a verdict for the defendant. On motion of plaintiff's attorneys a new trial was granted on grounds not stated in the order. The defendant appeals from this order, and from the refusal of the circuit judge to grant a nonsuit, on the ground that the plaintiff produced absolutely no evidence to support the allegations of negligence in the construction of the railroad.

1. In considering the refusal to grant the nonsuit, the first question which requires our attention is the power of this court with regard to granting or withholding such remedy. In case a nonsuit should have been granted by the court below, has this court power to do what that court should have done, namely, grant the nonsuit? The question first came up for decision in the case of Sampson & Wyatt v. Singer Mfg. Co., 5 S. C. 465, 466, where the court lays down the following rule: "If the nonsuit was improperly refused, and the nature of the plaintiff's demand was such that no recovery could be lawfully had, this court will grant the motion, and dismiss the plaintiff's complaint. If, however, it is merely a case of insufficiency of proofs adduced at the trial to support a cause of action in itself of a proper legal nature, this court will not dismiss the complaint upon appeal, but order a new trial, to afford the plaintiffs an opportunity to make better proofs." Shortly afterwards, in Willis v. Knox, 5 S. C. 474, 476, the rule was affirmed; the court using this language: "The plaintiffs should have been nonsuited. The evidence not only does not tend to show malice, but goes far to show that the defendant had probable ground for suspecting the existence of the facts that constituted the substance of the charge on which the search warrant issued. As the ground for nonsuit was insufficiency of evidence adduced to support the issues made by the pleadings, this court will not dismiss the complaint, but order a new trial." Again, in Carter v. Railway, 19 S.C. 20, 26, 45 Am. Rep. 754, we find this: "We think that at the close of the plaintiff's case below there was a total want of testimony as to defendant's negligence, the gist of the action, and therefore the nonsuit should have been granted; and in such case under the ruling of Sampson, etc., v. Singer Mfg. Co., 5 S. C. 465, and Willis v. Knox, 5 S. C. 476, a new trial is proper." In distinguishing between cases in which the court can grant a nonsuit and those in which it must grant a new trial, the court in the case of Decamps v. Carpin, 19 S.C. 121, 126, says: "Inasmuch as the plaintiff not only failed to prove that Jaffeaux owed him anything at the time the contract with defendant was made, but, on the contrary, did prove that he then owed him nothing, the motion for a nonsuit should have been granted; and as it is not a case of want of evidence merely, but one in which the nature of the demand, as set up by the plaintiff, is such that he cannot in any event recover, under the authority of the case of Sampson & Wyatt v. Singer Mfg. Co., 5 S. C. 465, the complaint must be dismissed. This case differs from the case of Carter v. Railway and Carrier & Harris v. Dorance, 19 S.C. 30, decided at the present term, in this respect: In those cases the motions for nonsuit were based solely upon the want of evidence tending to establish the material allegations in the complaints, while here the nature of the demand, as set up by plaintiff, is such that he could not in any event recover." And finally this principle was recently affirmed in the case of Townes v. City Council, 46 S.C. 15, 23 S.E. 984. Therefore, unless this is a case in which "the nature of the plaintiff's demand is such that no recovery can be had lawfully," this court has power only to grant a new trial. The complaint alleges negligent construction of defendant's railroad and injury resulting to the plaintiff therefrom. That plaintiff has a legal right to maintain such an action will not be doubted, and a nonsuit will be granted only in the entire absence of testimony going to sustain the allegations of the complaint. The motion was made on the very ground that there was no such testimony. Under the authorities above cited, therefore, this court must grant a new trial. The circuit court, however, having already done this, even if the nonsuit were improperly refused, this court could only affirm its action. The recent rule of court on the subject has no application; the suit having been begun prior thereto.

2. It is also alleged, on the ground that there was absolutely no testimony to sustain plaintiff's action, that the circuit judge erred in granting a new trial. Section 11, subd. 2, of the Code of Procedure of 1902, as adopted in 1870, provided "that this court should have power to review upon appeal an order affecting a substantial right made in an action when such order in effect determines the action, and prevents a judgment from which an appeal might be taken,...