McDaniel v. Atlantic Coast Line R. Co.

• Decision Date: 27 February 1907
• Citation: 56 S.E. 956,76 S.C. 189
• Parties: McDANIEL v. ATLANTIC COAST LINE R. CO.
• Court: South Carolina Supreme Court

56 S.E. 956

76 S.C. 189

McDANIEL v. ATLANTIC COAST LINE R. CO.

Supreme Court of South Carolina

February 27, 1907

Appeal from Common Pleas Circuit Court of Sumter County; Gary Judge.

Action by Amanda McDaniel, as administratrix of David McDaniel against the Atlantic Coast Line Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Willcox & Willcox, Cooper & Fraser, Mark Reynolds, and Henry E Davis, for appellant. Lee & Moise, for respondent.

GARY A. J.

This action for damages, alleged to have been sustained, in consequence of the negligent and reckless killing of plaintiff's husband, by the derailment of a shifting engine, upon which he was employed in the capacity of switchman and coupler. The complaint alleged that the deceased was riding on the foot board of the engine, as it was running backwards at a slow speed, about 8 o'clock at night, on the main track in the Sumter yard, for the purpose of getting water; that, when the engine reached a point about midway of the yard, it was derailed while running on a portion of the track that had been torn up during the day under the defendant's directions; that neither the deceased nor the engineer knew of the condition of the track nor were there any danger signals or lights to warn them of the danger, and, as a consequence of the negligence and recklessness of the defendant, the deceased was thrown under the wheels of the engine and crushed to death. The defendant denied the allegations of negligence and recklessness, and alleged that the deceased was killed by his own negligence in signing the engine back when he knew that the track had been torn up, and that it was not necessary for the engine to go over this track in order to get water. The defendant also set up the defense of contributory negligence. On the 10th of March, 1906, the plaintiff gave notice of a motion to amend her complaint by striking out the names of two supposed beneficiaries, the father and mother of her intestate; he having left no children, and the widow, therefore, being the sole beneficiary. This motion was granted on the 24th of March, 1906. On the 3d of April, 1906, the defendant served notice of intention to appeal from this order. On the 6th of April, 1906, the plaintiff gave notice of a motion for an order, declaring that said notice of intention to appeal did not operate as a supersedeas. The motion was granted on the 12th of April, 1906. No specific notice of intention to appeal from the order dated April 12, 1906, was served. In pursuance of the notice of intention to appeal hereinbefore recited, the defendant on the 16th of April, 1906, filed the return in the Supreme Court, and on the 28th of April, 1906, served plaintiff with defendant's proposed case and exceptions. At the time of the alleged filing of the return in the Supreme Court on April 16, 1906, neither the case nor any exceptions had been served by the appellant, and the said alleged return shows that no exceptions nor proposed case had been served on or prior to April 16, 1906. Early in April the Sumter Bar Association met, for the purpose of arranging the roster of cases for trial at the ensuing term, at which meeting the appellant's attorneys were present. This case was placed on the roster for trial on April 16, 1906. On that day, pursuant to the roster, a copy whereof was given to the judge for his information and guidance, the said case was called for...