Marshall v. Charleston & S. R. Co

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: JONES
• Citation: 35 S.E. 497,57 S.C. 138
• Decision Date: 03 April 1900
• Parties: MARSHALL v. CHARLESTON & S. R. CO.

35 S.E. 497
57 S.C. 138

MARSHALL
v.
CHARLESTON & S. R. CO.

Supreme Court of South Carolina.

April 3, 1900.

INJURY TO EMPLOYS—CONTRIBUTORY NEGLIGENCE—PLEADING—NEW TRIAL —APPEAL AND ERROR.

1. In an action for causing the death of a railway employe, defendant alleged in its answer that deceased was guilty of contributory negligence in so negligently unloading a car as to obstruct the passage of defendant's train, which was backing into the station, and that, but for said neglect, the accident would not have happened. A verdict being returned for defendant, a new trial was granted the plaintiff on the grounds that defendant's negligence was established, and that the answer did not allege that it was an act of negligence on the part of deceased, nor that it was beyond the scope of his employment, to personally superintend the unloading of the car referred to. nor did the language imply that his duties did not require him to do so. Held, that the language of the answer was broad enough to admit evidence that at the time of the injury the deceased was performing services not within his ordinary duties.

2. The grant of a new trial upon an erroneous construction of defendant's pleading is an error of law for which the order of new trial will be reversed.

3. The granting of a new trial to plaintiff in an action for causing death of plaintiff's intestate upon the ground that, upon the theory that deceased was a trespasser on defendant's railway, a verdict for defendant was not supported by the evidence, when there was no contention that plaintiff's intestate was a trespasser, is an error of law, for which the order for new trial will be reversed.

Appeal from common pleas circuit court of Charleston county; J. C. Klugh, Judge.

Action by Sallie T. Marshall, as administratrix of the estate of J. C. Marshall, deceased, against the Charleston & Savannah Railroad Company, for damages for causing the death of plaintiff's intestate. There was a verdict for defendant, and from an order granting plaintiff a new trial defendant appeals. Reversed.

Mordecai & Gadsden, for appellant.

Legare & Holman, for respondent.

JONES, J. The jury in this action found a verdict for the defendant, which was set aside, and a new trial granted. The appeal is from the order granting a new trial.

The well-settled rule is that this court cannot review an order refusing or granting a new trial except for error of law, as the court is without jurisdiction to review the judgment of the circuit court on question of fact. The order appealed from is as follows: "The plaintiff gave notice of a motion for a new trial on the minutes of the court. After hearing counsel for and against said motion, I am satisfied that the same should be granted. The plaintiff established the negligence of the defendant as alleged in the complaint, in my opinion, by the clear and strong preponderance of the evidence. The affirmative defense set up in the answer alleges the negligence of the deceased in two particulars: First. His neglect of duty in failing to unload the car referred to the night before. This, if established, could not be the proximate cause of his injury, and therefore could be...