Mellette v. Atlantic Coast Line R. Co.

• Decision Date: 06 July 1936
• Docket Number: 14326.
• Citation: 186 S.E. 545,181 S.C. 62
• Parties: MELLETTE v. ATLANTIC COAST LINE R. CO. et al.
• Court: South Carolina Supreme Court

186 S.E. 545

181 S.C. 62

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

No. 14326.

Supreme Court of South Carolina

July 6, 1936

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 negligence,-that is the only theory you could recover on. I hold under my construction you have alleged negligence, and you have got to prove it. I hold this case is founded on negligence, and not on the statute, and plaintiff has got to prove negligence by the greater weight of the evidence, under the allegations of the complaint," and the trial judge instructed the jury in accordance with this ruling. To that portion of the judge's charge, so announcing and applying the legal standard of defendants' liability, no exception was taken by the plaintiff, and the case was tried upon this theory alone. Nor, during the trial, did he move to amend his complaint. Birt v. Southern Ry., 87 S.C. 239, 69 S.E. 233. The appeal must, therefore, be considered in the light of the general rule that the theory pursued in the trial court with respect "to the relief sought and grounds therefor" must be adhered to in the appellate court. Wilson v. Southern Ry. Co., Carolina Division, 123 S.C. 399, 115 S.E. 764; 3 C.J. pp. 730, 737, §§ 625, 630; Cothran v. Knight, 45 S.C. 1, 22 S.E. 596; McKittrick v. Greenville Traction Company, 84 S.C. 275, 66 S.E. 289.

In accordance with this rule, which is generally recognized, the construction of pleadings with regard to their nature and form, which is placed upon them in the trial court, must be adhered to on appeal.

The appeal involves this question: Was there adduced a scintilla of evidence to be submitted to the jury that plaintiff's property was destroyed by fire due to the negligence of any one or all of the defendants?

Of course, if the nonsuit had been granted, the motion for a directed verdict would not have been made. As will be pointed out, the trial court was clearly in error in not granting a nonsuit, and, unless additional testimony was furnished by the witnesses for the defendants to supply what was lacking in the testimony of the plaintiff, the motion for a directed verdict should likewise have been granted. Blakely v. Atlantic C. L. R. Co., 172 S.C. 343, 174 S.E. 15. The record shows no such additional testimony. A verdict for the defendants should have been directed.

The facts of the case pertinent to a determination of that question, considered in the light most favorable to the contention of the plaintiff, are as follows:

Two public highways intersect the railroad at Cane Savannah; one is an unpaved road, crossing at right angles, and the other is the paved highway, which crosses at an acute angle. The gin house in question was located, according to the testimony of the plaintiff, about 50 or 60 feet from the rails, in the angle made by the railroad and the paved highway, and was entirely covered with tin, or was of some other metal construction. On the night of April 14-15, 1935, three of the defendant railroad company's trains passed Cane Savannah No. 65, about 9:50 or 9:55 o'clock p. m.; No. 808 (the one complained of) left Sumter at 11:05 o'clock p. m., and passed Cane Savannah about 11:20 o'clock p. m.; and Engine No. 800, pulling train No. 220, from Columbia to Sumter, passed Cane Savannah about 11:40 o'clock p. m. or 11:45 o'clock p. m. The fire was first discovered by several negroes in a passing car, and a Mr. Coble, in...