Reed v. Northeastern R. Co.
| Decision Date | 22 November 1892 |
| Citation | 16 S.E. 289,37 S.C. 42 |
| Parties | REED v. NORTHEASTERN R. CO. |
| Court | South Carolina Supreme Court |
Appeal from general sessions circuit court of Berkeley county; W. H WALLACE, Judge.
Action by Ophelia Reed, administratrix of George Patterson Reed deceased, against the Northeastern Railroad Company. Judgment for defendant. Plaintiff appeals. Reversed.
Mordecai & Gadsden, for appellant.
W Huger Fitzsimons, for respondent.
This action came on for trial before his honor, Judge WALLACE, and a jury, at the June, 1891, term of the court of common pleas for Berkeley county. The complaint was as follows: "(1) That the defendant is a corporation duly incorporated under the laws of this state, and as such is the owner of a certain railroad known as the Northeastern Railroad, together with the tracks, cars, locomotives, and other appurtenances thereto belonging, between the city of Charleston and the city of Florence, in said state. (2) That on or about the ___ day of June, 1890, there was on the main line or track of the defendant's railroad, at a point within a mile of Ashley junction, a station on said road, and leading off from said main line, a side track, commonly known as a 'Y' track, constructed for the purpose of connecting with the Charleston & Savannah Railway Directly, to avoid the necessity of certain trains coming up to the junction. That side track of 'Y' was connected with defendant's main line by a switch, and that within said side track or 'Y', and leading out from it, is what is commonly known as a 'spur' track, said spur track being also connected with the said 'Y' track by a switch; and plaintiff alleges that it was necessary for the safe running of defendant's trains and the preservation of the lives of the passengers and employees of the defendant that both of said switches--the one connecting the main line with the 'Y' track, and the other connecting the 'Y' track with the spur track--should be securely fastened and locked, and properly cared for. (3) That on or about the ___ day of June, 1890, the plaintiff's intestate. George Patterson Reed, was in the discharge of his duty as wood passer on the engine and tender pulling a certain train of the defendant's known as the 'Columbia Special, No. 53,' bound from the town of Lane's to the city of Charleston in said state, passing over the main line of the said defendant, and at the point where said 'Y' switch is placed, near Ashley junction, aforesaid. (4) That on said date the defendant carelessly, negligently, wrongfully, and unlawfully caused said 'Y' switch securing said 'Y' track or siding, as well as the switch within the 'Y' track, securing the spur track, to be insecurely and improperly fastened and left open and uncared for, in consequence of which the said train of cars pulled by said engine and tender aforesaid, coming down on said main line or track at a greatly excessive and dangerous speed, without the engineer having his train under proper control, or being prepared to stop as required by the rules of the said company, when reaching said switch connected with the 'Y' track aforesaid, through the defendant's negligence aforesaid, entered upon said 'Y' track, and, proceeding down the same, entered upon the spur track, thus causing the engine and tender to be derailed, by reason whereof the said George Patterson Reed was instantly killed while in the discharge of his duties aforesaid, through the negligence, carelessness, and wrongdoing of the said defendant. (5) That the death of the said George Patterson Reed was caused by the wrongful act, default, and negligence of the defendant in the manner before mentioned. (6) That on the 1st day of August, 1890, letters of administration on the estate of the said George Patterson Reed were granted by the probate court for Florence county, in said state, to his wife, the plaintiff, Ophelia Reed; the said George Patterson Reed having died intestate and married, leaving surviving him his father, his mother, his wife, the plaintiff, Ophelia Reed, and four minor children, to wit, Alice, Julia, Thomas, and Daisey, one of whom (Thomas) has since died intestate and underage, and the father of said intestate having also since departed this life; and the said Ophelia Reed has duly qualified as such administratrix, and entered upon the discharge of said trust. (7) That the said Ophelia Reed and her minor children aforesaid, to wit, Alice, Julia, and Daisey, had for her and their maintenance, comfort, and support during his lifetime a beneficial interest in the said life and earnings of the said George Patterson Reed, and by his death have been deprived of the aid, comfort and support which he, living, had furnished, and would furnish to her and them, by reason of the income resulting from his labor and services, and that by his death she and they, to wit, the said minor children and the mother of said intestate, have been injured to her and their damage ten thousand dollars; and therefore, as administratrix as aforesaid for the benefit of herself, the wife of the said intestate, and his three minor children, to wit, Alice, Julia and Daisey, and the mother of the said intestate, the only persons designated by the statute to derive the benefit thereof, she, the said plaintiff, brings this action. Wherefore she demands judgment against the defendant for the sum of ten thousand dollars and costs." The defendant at the trial interposed the oral demurrer that the complaint did not state facts sufficient to constitute a cause of action. The circuit judge sustained the demurrer, and dismissed the complaint. After judgment, the plaintiff appeals to this court upon substantially these three grounds: "(1) Whether the statute commonly known as 'Lord Campbell's Act', as incorporated in the General Statutes of this state under section 2183, gives a cause of action to the personal representative of the deceased in cases when the death of the intestate was instantaneous; (2) whether, under the allegations of the complaint in this action, there is sufficient charge of negligence to sustain the complaint; (3) whether the complaint was demurrable on the ground of action being brought in favor of the mother of the deceased as well as the wife and children, when both the wife and children were alive at the time of the institution of the action.
1. We will first consider the question as embodied in the first proposition. There can be no question that under the laws of this state, as borrowed from the common law, in torts the right of action relating thereto died with the person injured. Actio personalis moritur cum personal.. Chaplin v. Barrett, 12 Rich. Law, 284; Huff v Watkins, 20 S.C. 480. But in cases like the present, namely, when it is alleged that a person whose services are owed to certain persons as a comfort or support to them is killed while in the service of another, by the wrongful act of his employer, the legislation of this state has supplemented the provisions of the common law, and given a right of action in behalf of certain kindred of the deceased. 12 St. at Large, p. 825. The remedy supplied by this legislation is evidently intended to be the adoption of what is known as "Lord Campbell's Act," whose title was "An act for compensating the families of persons killed by accident." This remedy is now incorporated in the General Statutes of this state in sections 2183-2186, in these words: ...
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