McKeown v. South Carolina & G.E.R. Co.

• Decision Date: 19 April 1904
• Citation: 47 S.E. 713,68 S.C. 483
• Parties: McKEOWN v. SOUTH CAROLINA & GEORGIA EXTENSION R. CO.
• Court: South Carolina Supreme Court

47 S.E. 713

68 S.C. 483

McKEOWN v. SOUTH CAROLINA & GEORGIA EXTENSION R. CO.

Supreme Court of South Carolina

April 19, 1904

Appeal from Common Pleas Circuit Court of York County; Dantzler Judge.

Action by John G. McKeown, administrator of J. W. McKeown, against the South Carolina & Georgia Extension Railroad Company. From order of nonsuit, plaintiff appeals. Reversed.

Wilson & Wilson, for appellant. C. P. Sanders, for respondent.

JONES J.

This action was brought to recover damages for alleged wrongful death of plaintiff's intestate, J. W. McKeown, through the negligence and wantonness of the defendant. This appeal is from a nonsuit.

The complaint alleged: "(4) That on the night of the 5th day of February, 1901, about 9:30 o'clock, the said J. W McKeown was walking along the side of the track of defendant railroad between Yorkville and Sharon, in said county and state, and which, with the knowledge and acquiescence of defendant, had long been used by the public as a traveled way, when one of defendant's freight trains, going toward Sharon, and negligently running without any headlight on its engine, recklessly and negligently ran upon and against the said J. W. McKeown, knocking him down on the side of said track, and inflicting severe, but not necessarily fatal, injuries; and that, although the engineer and fireman running and operating said train for defendant at the time knew, or had good cause to know, or by proper care and inquiry would have known, that the said J. W. McKeown had been so struck and injured, they recklessly, wantonly, and negligently failed to stop said train and take care of him but continued on their way. (5) That the said J. W. McKeown was hard of hearing, and so could not hear the approach of said train; but, if said engine had been supplied with the proper headlight, the reflection therefrom would have warned him of its approach, so that he could have avoided the same. (6) That the injury so inflicted upon the said J. W. McKeown would not have resulted in his death if said train had been stopped and proper care and attention had been given to him but, owing to the recklessness and wanton negligence of the defendant, as aforesaid, the said J. W. McKeown was allowed, in said condition, to lie on the side of said track, in the wet and cold, for hours, without any aid or assistance, thereby causing his death."

The motion for nonsuit was based upon the following grounds: "(1) Because there is no evidence tending to show that the place where the deceased was killed was a street, highway crossing, or traveled place, but, on the contrary, the evidence shows that the place where the deceased was killed was on the track of the defendant at a point other than a street, highway, or traveled place, and where neither the public nor the deceased had a legal right to be. (2) Because there is no evidence tending to show that the deceased was seen, or might have been seen, by the engineer, or those in charge of the engine or train, even if there had been a headlight, or that the employés of the defendant company knew, or might have known, that the deceased was in a place of apparent danger, from which he could not have extricated himself. (3) Because there is no evidence tending to show that the employés of the company were guilty of any willfulness, wantonness, or of any such negligence or want of care, as would make the defendant liable for injuring or killing one who was using its tracks at a point where he had no legal right to be. (4) Because there is no evidence which tends to show any breach of duty by the defendant to the deceased, even assuming him to have been a licensee. (5) Because there is no evidence that deceased was killed by the defendant. (6) Because there is no evidence tending to show that the train could have been stopped in time to avoid injuring the deceased, even if it had been equipped with a headlight. (7) Because there is no evidence tending to show that the want of a headlight was the proximate cause of the injury."

Judge Dantzler, in his order of nonsuit, sustained the first, second, third, sixth, and seventh grounds, but overruled the fourth and fifth. The appellant alleges error in granting nonsuit on the grounds stated, and respondent has given proper notice that the court would be asked to sustain the nonsuit also upon the grounds overruled.

First as to whether there was any evidence tending to show that deceased was killed by the defendant. In what we shall say hereafter we do not mean to express any opinion whatever as to the force or sufficiency of the evidence, but intend only to indicate our view as to whether there was any evidence tending to prove the allegations of the complaint, and which the jury should have been permitted to consider. There was testimony that on the night of February 5, 1901, between 10 and 11 o'clock, J. W. McKeown was found lying in a helpless condition on defendant's track between Yorkville and Sharon, in York county, by William...