Mellette v. Atl. Coast Line R. Co, 14326.

• Decision Date: 06 July 1936
• Docket Number: No. 14326.,14326.
• Court: South Carolina Supreme Court
• Parties: MELLETTE. v. ATLANTIC COAST LINE R. CO. et al.

186 S.E. 545

MELLETTE.
v.
ATLANTIC COAST LINE R. CO. et al.

No. 14326.

Supreme Court of South Carolina.

July 6, 1936.

[186 S.E. 546]

Appeal from Common Pleas Circuit Court of Sumter County; C. J. Ramage, Judge.

Action by J. B. Mellette against the Atlantic Coast Line Railroad Company and others. From a judgment for plaintiff, defendants appeal.

Reversed and complaint dismissed.

Douglas McKay, of Columbia, and Reynolds & Reynolds, of Sumter, for appellants.

L. D. Jennings, of Sumter, for respondent.

FISHBURNE, Justice.

This action was brought to recover damages alleged to have been sustained by the plaintiff on account of a fire which destroyed certain sawmill and gin machinery and 1200 feet of lumber owned by him, and which were installed and stored in a gin house leased by the plaintiff. The cotton gin building was situated on the northern side of the railroad company's right of way, at Cane Savannah, which is a flag station on the Sumter-Columbia branch of the railroad company located 6 miles west of Sumter and 4 miles east of Wedgefield. The fire in question occurred shortly after midnight on April 15, 1935.

The plaintiff joined as defendants with the railroad company, A. B. Fowler, engineer, and W. E. Large, fireman, who were in charge of the operation of train No. 808 (the alleged offending train), which passed Cane Savannah at 11:20 o'clock on the night of April 14, 1935.

The defendants denied the material allegations of the complaint. Upon trial a verdict was returned in favor of the plaintiff. The defendants base their appeal to this court upon two exceptions, which assign error to the circuit court:

(a) In not granting the motion of the defendants for an order of nonsuit, made at the conclusion of plaintiff's testimony, because it did not appear, by any reasonable inference that might have been drawn from the testimony offered on behalf of the plaintiff, that the fire which caused the damage alleged in the complaint, was caused or occasioned by or through any negligence on the part of the defendants.

(b) In not granting the motion of the defendants for a directed verdict made at the conclusion of all the testimony, on the ground that it did not appear that there was any testimony from which it could reasonably have been inferred that the fire which caused the damage alleged in the complaint was the result of, or was caused or occasioned by any negligence on the part of any one or all of the defendants, and, on the contrary, the only reasonable inference that could have been drawn from all the testimony was that such fire was not caused by the defendants.

By way of preliminary, we should state that in construing the complaint to determine the nature of the cause of action sued upon, the trial judge held that the complaint did not allege a cause of action under the statute (section 8362, 1932 Code), but that it was brought solely upon the theory of common-law negligence. He said, "I hold you have got to prove...