Primus v. Atl. Coast Line R. Co

• Citation: 171 S.E. 1
• Decision Date: 13 March 1933
• Docket Number: No. 13599.,13599.
• Court: United States State Supreme Court of South Carolina
• Parties: PRIMUS. v. ATLANTIC COAST LINE R. CO.

171 S.E. 1

PRIMUS.
v.
ATLANTIC COAST LINE R. CO.

No. 13599.

Supreme Court of South Carolina.

March 13, 1933.

[171 S.E. 1]

Appeal from Common Pleas Circuit Court of Richland County; C. C. Featherstone, Judge.

Action by Janie Primus, as administratrix of the estate of Noah Primus, deceased, against the Atlantic Coast Line Railroad Company. From a judgment in favor of plaintiff, defendant appeals

Affirmed.

McKay & Manning, of Columbia, and Thos. W. Davis, of Wilmington, N. C, for appellant.

W. W. Hawes, James S. Verner, and A. F. Spigner, all of Columbia, for respondent.

CARTER, Justice.

This action, commenced in the court of common pleas for Richland county, April 20, 1931, by Janie Primus, as administratrix of the estate of Noah Primus, deceased, against the defendant, Atlantic Coast Line Railroad Company, is a suit for damages on account of the death of the said deceased, alleged to have been caused by the wrongful acts of the defendant, while in the employment of the defendant and engaged in the performance of his duties as a crossing flagman at Green street crossing in the city of Columbia, said state of South Carolina. The action was brought under the Federal Employers' Liability Act (45 USCA §§ 51-59). In its answer the defendant set up a general denial, and also interposed the pleas of contributory negligence and assumption of risk. The case was tried at the December, 1931, term of said court before Judge C. C. Featherstone and a jury, resulting in a ver-

[171 S.E. 2]

diet for the plaintiff in the sum of $2,500. From judgment entered on the verdict, pursuant to due notice, the defendant has appealed to this court.

The allegations of error imputed to the trial judge are based upon his honor's refusal to grant defendant's motion for direction of a verdict, and also upon certain portions of his honor's charge.

The pertinent allegations of fact alleged by the plaintiff, briefly stated, are as follows:

The defendant, Atlantic Coast Line Railroad Company, as a common carrier, owns, operates, and controls a line of railway extending from Wilmington, N. C, through and beyond the city of Columbia, S. C, together with certain locomotives, trains, etc., and at the time in question used same in intrastate and interstate transportation; that one of the railroad tracks of the said railroad so used by the defendant crosses Green street in the said city of Columbia, "at a point at which the defendant keeps and maintains a watchman for the purpose of warning the traveling public of the approach of trains and locomotives used by the defendant in the transaction of its business; that at a point where the said Green Street intersects the said defendant's line of railroads the defendant maintained, and used, and now maintains and uses certain spur or side tracks which run parallel with defendant's main track at that point, said spur tracks being used by defendant for the switching of cars; that on or about the 23rd day of October, 1930, the plaintiff's intestate, Noah Primus, was employed by the defendant herein as a watchman at said crossing, his duties being to keep a watchout for approaching trains and to warn the traveling public by signalling as, and when, any train or locomotive was approaching said crossing, and on said date and while the plaintiff's intestate was so engaged in flagging and protecting the traveling public from injury by a certain train of Cars then being used in the transportation of both intrastate and interstate freights which...