Marshall v. Charleston & S. R. Co.

• Decision Date: 03 April 1900
• Citation: 35 S.E. 497,57 S.C. 138
• Parties: MARSHALL v. CHARLESTON & S. R. CO.
• Court: South Carolina Supreme Court

35 S.E. 497

57 S.C. 138

MARSHALL v. CHARLESTON & S. R. CO.

Supreme Court of South Carolina

April 3, 1900

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 no just ground for the verdict. Secondly. The negligent manner in which he was having the car unloaded at the time of his injury. I hold that this second specification of negligence does not allege that it was an act of negligence on the part of the deceased, nor that it was beyond the scope of his employment, to personally superintend the unloading of the articles referred to; nor does a fair construction of the language of the answer imply that his duties did not require him to do so, but rather the contrary. Even if the answer admitted of such a construction, the deceased could not, under the facts of the case, be deemed a trespasser, and the testimony, in that view, would not, in my opinion, support the verdict. It is therefore ordered that the verdict of the jury be set aside, and that a new trial be, and the same is hereby, granted." Appellant's exceptions to this order are as follows: "First. Because his honor, the circuit judge, committed an error of law in holding that the affirmative defense set up in the answer alleges the negligence of the deceased in two particulars, to wit: (1) His neglect of duty in failing to unload the car referred to the night before; (2) the negligent manner in which he was having the car unloaded at the time of his injury. Second. Because his honor, the circuit judge, should have held as a matter of law that one of the affirmative defenses set up in the answer was that the deceased, J. C. Marshall, in personally superintending the unloading of these packages from the car, had voluntarily left his post of duty, and was performing services for his employer which were not included within his ordinary duties. Third. Because his honor, the circuit judge, erred as a matter of law in granting a new trial herein on the grounds that the affirmative defense set up in the answer could not be construed to include the defense that the said J. C. Marshall was...