Moseley v. Southern Ry. Co.

• Decision Date: 07 January 1932
• Docket Number: 13319.
• Citation: 162 S.E. 94,164 S.C. 193
• Parties: MOSELEY v. SOUTHERN RY. CO. et al.
• Court: South Carolina Supreme Court

162 S.E. 94

164 S.C. 193

MOSELEY v. SOUTHERN RY. CO. et al.

No. 13319.

Supreme Court of South Carolina

January 7, 1932

Appeal from Common Pleas Circuit Court of Spartanburg County; T. J Mauldin, Judge.

Action by Helen Dupre Moseley, as administratrix of the estate of Carlos Rowland Moseley, deceased, against the Southern Railway Company and others. From judgment for plaintiff defendants appeal.

Reversed and remanded.

H. E De Pass, of Spartanburg, and Frank G. Tompkins, of Columbia, for appellants.

Nicholls, Wyche & Byrnes, of Spartanburg, for respondent.

COSGROVE A. A. J.

Action for damages for wrongful death.

The complaint alleged that on March 1, 1927, while plaintiff's intestate, in the nighttime, was walking along a walkway or roadbed (maintained by defendants along and parallel with the railroad company's track and fill leading from Cayce, S. C., to Columbia, S. C., through which there is an opening or cut, and quarry track of another railroad, approximately fifty feet below), by reason of the joint and concurrent negligence, recklessness, carelessness, and wantonness of the defendants in failing to construct and maintain a footbridge across the cut, or a guard rail at said cut, and in constructing and maintaining in the walkway or roadbed a concrete abutment or curb, which was not high enough to prevent a pedestrian from falling, but projected high enough to trip a person and cause one to fall into the cut, and in failing to give a pedestrian any notice, signal, or warning of the existence of the abutment projecting into the walkway or deep cut beyond, plaintiff's intestate, Carlos Rowland Moseley, was tripped by said concrete abutment and fell into the cut and onto the quarry tracks below, crushing his head, bruising his body, and inflicting upon him great injuries, thereby taking his life, to the damage of plaintiff in the sum of $50,000.

There was the further allegation in the complaint that the walkway had been used for many years by the employees of the railroad company and the public generally in walking from Cayce to Columbia, with the knowledge and acquiescence of the defendants and without objection from them.

The individual defendants were joined as employees of the Southern Railway Company, whose duties, plaintiff alleged, required, among other things, the maintenance of the walkway adjoining the railroad track and the maintenance and construction of bridges and the approach to bridges on its right of way at the point involved in the action.

The defendants filed a joint answer setting up (1) a general denial; and (2) the defenses of contributory negligence, recklessness, willfulness, and wantonness.

The case was tried before the late Hon. T. J. Mauldin, Circuit Judge, and a jury at the February, 1930, term of the court of common pleas for Spartanburg county, resulting in a verdict for plaintiff in the sum of $10,000 actual damages. From the judgment entered thereon defendants have appealed to this court.

During the progress of the trial, defendants made motions for a nonsuit and a directed verdict, both of which were refused. The refusal of these motions, with other grounds, constitute the exceptions of this appeal.

As we are of the opinion that the trial judge erred in his refusal of either or both of these motions, a consideration of the other exceptions is rendered unnecessary.

There were no eyewitnesses to the tragedy. Plaintiff was compelled, therefore, to rely entirely upon circumstantial evidence.

The theory of the plaintiff was that her intestate while on his way by automobile from Charleston to Columbia, at or near Cayce, turned into a blind road from the main highway; that his automobile became stuck in a hole on a spur track of the railroad at that point; and that in endeavoring to get the car out, its battery was run down. Realizing he could not move the car, he determined to go for assistance. That he came down the side track, crossed over the highway which passes through Cayce, and seeing the lights of Columbia in the distance (estimated to be about a mile away) he entered the walkway or path by the side of the railroad tracks of the main line of the Southern Railway, which by its appearance was used by others, and proceeded along this path until he reached the abutment at the cut, described in the complaint, tripped over the same, and fell to his death below.

At the place of the alleged injury and death of plaintiff's intestate, the roadbed of the Southern Railway is built upon a fill, leading from Cayce to the trestle over the Congaree River by which the main line enters Columbia. Near the town of Cayce and between it and the Congaree trestle, there is a cut in the fill, known as Guignard's cut, through which runs a quarry track. The walls of the cut are of concrete and are perpendicular, supporting the trestle portion of the Southern's main line passing thereover at a height of about twenty to thirty feet.

The evidence adduced tended to show that beside the track on the fill between Cayce and Guignard's cut, there was a walkway or path which had been used by the public generally for many years; that such use was an invitation to others to enter and use it; that at the date of the accident there were no signs warning pedestrians not to use the pathway; that in this walkway there was the cut above described, some twenty or more feet deep; that the walls of the cut projected above the walkway about twelve to eighteen inches; and that the cut was unprotected by guard or rail or by light or other warning.

Under the decisions of this court such testimony, if believed by the jury, was sufficient upon which to base a verdict of negligence. Hayes v. Railway, 103 S.C. 522, 88 S.E. 268; Matthews v. Railway, 67 S.C. 512, 46 S.E. 335, 65 L. R. A. 286. "The necessity for protection was open and apparent to all." Hayes v. Railway, supra.

Under the fundamental law of negligence, however, in order for plaintiff to recover, the burden was upon her to show not only that defendants were negligent, as alleged in the complaint, but that the negligence relied on was the proximate cause of the death of plaintiff's intestate. In other words, that defendants were guilty of actionable negligence.

The complaint alleged that on the date therein mentioned, in the nighttime, plaintiff's intestate was walking along the walkway, or roadbed, above described, and, by reason of the negligence above set forth, fell into the cut and met his death.

The vital inquiry arises: Did Moseley, in the nighttime, walk along this path, trip over the unprotected abutment, and fall to his death below?

The burden, of course, was upon plaintiff to prove this essential element in her case; for no matter how negligent defendants may have been in the maintenance of the pathway and cut, unless Moseley was shown by the evidence to have used the pathway and to have suffered by reason of the negligence proved, plaintiff has not sustained the burden of proof imposed upon her by the law.

We are fully aware of the rule of this court that: "In order for this court to sustain the order of nonsuit, it must be satisfied that the testimony of the plaintiff, when considered in connection with that introduced by the defendant, is susceptible of only one inference, and that inference must be that it fails entirely to sustain the material allegations of the complaint." Seyle v. Charleston Terminal Co., 109 S.C. 99, 95 S.E. 178, 179. And: ""Even though a nonsuit should have been granted at the conclusion of plaintiff's testimony, yet, if the deficiency of evidence was supplied either on direct or cross examination of defendant's witnesses, neither a nonsuit nor a directed verdict could be granted at the conclusion of all the testimony." Eargle v. Sumter Lighting Co., 110 S.C. 566, 96 S.E. 909, 911.

A brief review of the testimony on this point, then, becomes necessary.

The undisputed testimony shows, in substance, the following:

Early on the morning of March 2, 1927, the body of Moseley, clothed in a raincoat over street clothes, was found in Guignard's cut. Overhead was the open trestle of the Southern Railroad, supported by concrete abutments at either end. The body was lying on its face with head towards Cayce and feet towards Columbia. It was partially under the railroad trestle, the ties of which, however, were too close for a person to fall through. There was a fracture at the back of the head, two contused wounds in the head, and bruises on the face and hands. Very little blood was found on the ground beneath the head. While there was no blood on the sleeve of the raincoat, the coat sleeve beneath it was...