Ritter v. Atl. Coast Line R. Co

• Decision Date: 19 July 1909
• Citation: 65 S.E. 175,83 S.C. 213
• Parties: RITTER. v. ATLANTIC COAST LINE R. CO.
• Court: South Carolina Supreme Court

65 S.E. 175

(83 S.C. 213)

RITTER.

v.ATLANTIC COAST LINE R. CO.

Supreme Court of South Carolina.

July 19, 1909.

1. Railroads (§ 441^*)—Killing Animals-Evidence.

In an action against a railroad for the killing of stock, the killing raised a presumption of negligence, which continued through the case subject to be overcome by defendant's evidence.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. 1578-1581; Dec. Dig. § 441.*]

2. Appeal and Error (§ 1011*)—Findings-Conflicting Evidence.

Findings of fact by the court on conflicting evidence are not subject to review.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. § 1011.*]

Appeal from Common Pleas Circuit Court of Colleton County; R. W. Memminger, Judge.

Action by A. R. Ritter against the Atlantic Coast Line Railroad Company. From a judgment for plaintiff, defendant appeals. Dismissed.

Jas. E. Peurifoy, for appellant.

Padgett & Lemacks, for respondent.

GARY, A. J. This action was commenced before a magistrate, to recover damages for the killing of two cows belonging to the plaintiff. The magistrate rendered judgment in favor of the plaintiff for $35, whereupon the defendant appealed to the circuit court. The appeal was dismissed, and the defendant has appealed again, upon several exceptions, which raise, in different form, the question presented by the first exception, which is as follows: "That the presiding judge was in error in affirming the judgment of the magistrate, and in dismissing the appeal, because the presumption of negligence arising from the mere fact that the stock was found dead on the defendant's right of way was overcome by the uncontradicted testimony of the defendant, to the effect that such killing was an unavoidable accident." The killing of the stock by the defendant raised the presumption of negligence, which continued throughout the case, but subject to be overcome by the testimony of the defendant.

In the case of Mack v. Railway, 52 S. C. 323, 29 S. E. 905, 40 L. R. A. 679, 68 Am. St. Rep. 913, the court said: "The killing of the mule by the defendant raised the presumption of negligence on the part of the defendant, and this presumption continued until it was rebutted by the testimony. The fact that the witnesses were examined by the plaintiff in regard to the killing of the mule did not destroy the presumption arising from the mere fact of killing, nor prevent the application of that rule. If the facts showed that there was no negligence,...