Peeples v. Seaboard Air Line Ry.

• Decision Date: 11 October 1920
• Docket Number: 10508.
• Citation: 104 S.E. 541,115 S.C. 115
• Parties: PEEPLES ET AL. v. SEABOARD AIR LINE RY.
• Court: South Carolina Supreme Court

104 S.E. 541

115 S.C. 115

PEEPLES ET AL. v. SEABOARD AIR LINE RY.

No. 10508.

Supreme Court of South Carolina

October 11, 1920

Appeal from Common Pleas Circuit Court of Hampton County; I. W Bowman, Judge.

Action by W. E. and B. J. Peeples, as administrators of the estate of J. W. Peeples, deceased, against the Seaboard Air Line Railway. From judgment for plaintiffs. defendant appeals. Affirmed.

Harley & Blatt, of Barnwell, for appellant.

Holman & Boulware, of Barnwell, for respondents.

FRASER J.

Mr. J W. Peeples, going along the principal street of Estill, a town in this state, found the street obstructed by a train of cars on the defendant road. There were three tracks across the street, and a freight train was across the middle track. There was a construction train on the first track. The freight train was moving off, and Mr. Peeples crossed the first track and waited for the freight train to clear the street. For some unknown reason, Mr. Peeples walked backwards from the moving freight train. In the meantime the construction train on track No. 1 moved slowly forward, and Mr. Peeples moved too close to track No. 1, and the construction train hit him, threw him under the train, and injured him to such an extent that he died in about two hours. The plaintiff administered on his estate and brought an action in behalf of the beneficiaries under Lord Campbell's Act, and the suit resulted in favor of the defendant company. The administrator then brought this action under the survival statute for the injury to Mr. Peeples asking for both actual and punitive damages. The defendant in its answer, denied negligence and willfulness, and set up the former judgment as res adjudicata, and pleaded contributory negligence. The defendant moved for a direction of verdict on negligence and willfulness. This was refused, and a verdict was rendered in favor of the plaintiff for $10,000. From the judgment entered on this verdict, the defendant appealed.

I. The first question is: Is the judgment in the first action res adjudicata?

The answer is that it is not. The case of Bennett v. Railway, 97 S.C. 27, 81 S.E. 189, is complete authority. At page 31 of 97 S. C., at page 190 of 81 S. E., this court says:

"There must be separate verdicts and separate judgments, and hence there should be separate actions and separate trials."

The opinion in that case is exceedingly clear and leaves no room for doubt. It follows that all efforts made to go into the record of the former trial must fail, and the exceptions need not be separately considered.

II. The appellant claims that there was no evidence that the deceased suffered anything, and therefore there is no basis of recovery. This position cannot be sustained. There was evidence that the deceased was dragged quite a distance, and while on the special train that carried him to Savannah, he asked to have his shoe taken off, because it hurt him, and, when asked if he wanted water, he bowed his head. There was conflicting evidence, but that was a question for the jury. It was said that the deceased was unconscious, because he could not speak. That was denied; but, even if Mr....