Mulligan v. Atlantic Coast Line R. Co.

• Decision Date: 29 March 1916
• Docket Number: 9362.
• Citation: Mulligan v. Atlantic Coast Line R. Co., 104 S.C. 173, 88 S.E. 445 (S.C. 1916)
• Parties: MULLIGAN v. ATLANTIC COAST LINE R. CO. ET AL.
• Court: South Carolina Supreme Court

88 S.E. 445

104 S.C. 173

MULLIGAN v. ATLANTIC COAST LINE R. CO. ET AL.

No. 9362.

Supreme Court of South Carolina

March 29, 1916

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

Action by Elizabeth A. Mulligan, administratrix, against the Atlantic Coast Line Railroad Company. From a judgment for the plaintiff, defendant appeals. Affirmed.

P. A Willcox, of Florence, L. W. McLemore, of Sumter, and Barron McKay, Frierson & Moffatt, of Columbia, for appellant.

E. J. Best, of Columbia, and Pierce Brothers, of Augusta, Ga., for respondent.

WATTS J.

This was an action for damages by the plaintiff against the defendant for damages brought under the federal Employers' Liability Act for the death of plaintiff's intestate. It is admitted that the deceased was engaged in interstate commerce. The case was tried before Special Judge Ramage and a jury at the Richland county term of court, and resulted in a verdict in favor of plaintiff for $10,000. After entry of judgment defendant appeals.

The first exception is as follows:

First. That his honor the trial judge erred in refusing to grant defendants' motion for nonsuit and for direction of verdict on the following grounds: (a) That there was not sufficient evidence in support of the allegations of the complaint to warrant the submission of the cause to the jury; (b) that there was no evidence to go to the jury to support the allegations of actionable wrong in the complaint; (c) there was no evidence that the proximate cause of the injuries to the plaintiff's intestate was the negligence of the defendant, the manner in which said injuries were received being purely conjectural and shrouded in mystery.

It is not essential that in establishing liability and proving negligence that there must be eyewitnesses to the transactions to establish the fact or be direct, but the evidence can be either direct or circumstantial. The plaintiff assumed the burden of furnishing evidence, but the proof may be either direct or circumstantial. Hicks v. Sumter Mills, 39 S.C. 39, 17 S.E. 509; Bennett v. Southern Railway, 98 S.C. 53, 79 S.E. 710.

Under the evidence in the case there was sufficient evidence to carry the case to the jury on the issue whether or not the decedent's death was caused by the acts of negligence or some of them on the part of the defendant alleged in the complaint.

It has been held in the case of Thornton v. Railway, 98 S.C. 349, 82 S.E. 433, and authorities therein cited:

"In an action for negligent injuries or wrongful death, plaintiff's failure to prove one of the several acts of negligence alleged does not warrant a direction of a verdict for defendant. Where the servant of a railroad was run down in the yards, but there were no eyewitnesses to his death, it will not be presumed that he intended to commit suicide, and threw himself under the cars, but it will be presumed that he was attempting to carry out his duties with due care. While negligence cannot be presumed, but must be proved, it may be established by circumstantial evidence. If there is no competent evidence to go to the jury, a nonsuit should be granted."

This exception is overruled.

The second exception is:

Second. That his honor erred in applying in this case the scintilla doctrine to determine whether the issues would be submitted to the jury, and in refusing to apply the doctrine of sufficiency of evidence recognized and applied in the federal courts, since this was an action under the federal Employers' Liability Act of April 22, 1908, as amended April 5, 1910, and

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