Scott v. Seaboard Air Line R. Co.

• Citation: 45 S.E. 129,67 S.C. 136
• Parties: SCOTT v. SEABOARD AIR LINE RY. CO.
• Decision Date: 15 July 1902
• Court: United States State Supreme Court of South Carolina

45 S.E. 129

67 S.C. 136

SCOTT v. SEABOARD AIR LINE RY. CO.

Supreme Court of South Carolina

July 15, 1902

Appeal from Common Pleas Circuit Court of Richland County; Klugh Judge.

Action by Donie E. Scott, as administratrix of James Daniel Scott against the Seaboard Air Line Railway Company. From judgment for plaintiff, defendant appeals. Affirmed.

Lyles & McMahan, Efird & Dreher, and E. McC. Clarkson, for appellant. W. Boyd Evans, E. M. Thompson, and L. D. Melton, for respondent.

POPE C.J.

This action is directed to the recovery by the plaintiff, in her representative capacity, of damages for killing the intestate by the defendant, on the 30th July, 1901, while such intestate was employed as a watchman over the bridge and trestle work of defendant over the Congaree river, near the city of Columbia, S.C. The case was tried before his honor Judge Klugh and a jury. The verdict was in favor of the plaintiff for the sum of $8,000. At the close of plaintiff's testimony, defendant moved for a nonsuit which motion was denied. After the verdict the defendant moved for a new trial, on the grounds of insufficiency of evidence and that the verdict was excessive. Motion on both grounds refused. Judgment having been duly entered, the defendant then appealed to this court.

Before proceeding to a consideration of the grounds of appeal, we deem it proper to give a brief recital of the pleadings and testimony. After a proper allegation as to defendant's liability for the acts of the late South Bound Railway, the plaintiff showed that her husband, the late James Daniel Scott, at his death was survived by herself, as his widow and his three children, naming each one; that he was employed by defendant's predecessor corporation as a night watchman over the Congaree bridge and trestle works adjacent thereto, setting out that his duties as such watchman required him to cross backwards and forwards over said bridge and trestle works of said rail-way to extinguish any fire that might appear thereon. That on the particular night of the tragedy, train No. 66, while running from the city of Savannah, Ga., to the city of Columbia, in this state, knocked the intestate from the trestle work on the Lexington side of the Congaree river, "negligently, carelessly, recklessly, and wantonly," in utter disregard of its duty and the safety of the said night watchman, without any headlight upon its engine, and without giving any signal or warning by bell or whistle or otherwise of its approach, as was its duty and custom to do, and without keeping any lookout whatsoever, and without any prudence or forethought which the engineer or person in charge of said engine should have kept upon the track where they knew said employé was at work, running at a rapid and reckless rate of speed, whereby the said intestate was killed. That his body was found thrown between two rocks, with his neck broken and his ribs were crushed and broken. Not only so, but the complaint further charged that no whistle was sounded or bell rung at the crossing by said railway over the public road near Cayces, S. C., which was about 200 yards from said bridge and trestle. And then followed the usual recitals of the loss in material support, society, etc., caused by the death of the said intestate.

The answer dealt in general denials, except, as a second defense, it used this language: "It denies each and every allegation of the complaint, and alleges that, if the plaintiff's intestate was killed by the locomotive and cars of the defendant, that he contributed thereto by his carelessness and negligence, and this defendant is not liable therefor."

The testimony of the plaintiff tended to show the corporate capacity of the defendant, and its employment for some nine months prior to the tragic death of the intestate as said night watchman at a salary of $30 per month; that on the night he was killed the said intestate was seen with his lamp burning--that is, a lantern with a light burning therein--going to the bridge and trestle work; that intestate was passed on said bridge with his lantern still burning, going in the direction of the Lexington side of said bridge and adjacent trestle works, just before the train No. 66, consisting of an engine and passenger coaches, came upon said trestle work and bridge, on its way to Columbia, S. C.; that said engine was ahead of its schedule time, both on its arrival at the bridge and also on its arrival at the depot in the city of Columbia, S. C.; that said engine had no headlight thereon; that the engineer and fireman on the engine, while on the bridge, were seen with their faces turned to each other in close conversation; that said engine did not slacken its speed on its approach to said bridge and trestle, but was being run at the rate of 50 or 60 miles an hour; that there was no whistle sounded or bell rung either at Cayces or at or near the bridge; that a witness saw the intestate seem to swing his lantern, and that he barely escaped from death while on said bridge from the said No. 66 train by jumping onto a little platform on the bridge, where barrels of water were constantly kept; that, after train No. 66 had passed this witness, he went across the bridge and trestle works to where he had seen the night watchman swing his lantern, and at or near the trestle works he found the lantern, and when he called out for the watchman he received no reply; that on the next morning another witness, at about the hour of 6 o'clock, found the remains of the night watchman, with his neck broken and the whole right side crushed, every rib being broken; that physician testified that such bruises could have been and likely were caused by a collision of the bumper near the cattle guard of the engine with the body of the deceased. These matters of testimony were before the circuit judge when he refused the motion for nonsuit. The defendant then offered testimony tending to establish that the engine had a headlight fully lighted; that the whistle of the engine was blown near Cayces; that the speed of the train was 20 to 30 miles an hour; that, instead of being ahead of time when the train reached the bridge and trestle, it was a little behind time, etc. We will now dispose of defendant's grounds of appeal:

1. Because his honor erred in refusing, upon motion, to strike out so much of the testimony of the witness J. J. Mims as included the facts, stated by him, that there was a rule of defendant company which required a signal to be blown on approaching the bridge across the Congaree river, because the said testimony was oral testimony as to the contents of a written instrument, and was hearsay and incompetent. J. J Mims, a witness for the plaintiff, was being cross-examined by the defendant, and during that cross-examination had stated that it was a rule of the railway company to blow the whistle before going on a trestle, but finally admitted that he had never seen any such rule. Therefore, defendant moved that the testimony of this witness as to a rule to blow before crossing be struck out. The court said: "I don't think there is any need to strike it out. You may strike it out so much as he said about the rules of the company." No doubt, the first words of the circuit judge were induced by the fact that the witness had just admitted before the jury that he never saw any such rule, and this, too, after he had first stated that there was such a rule. However, the judge finally said: "You can strike it out." We cannot see how the defendant received any prejudice hereby. This exception is overruled.

2. We will next consider the exceptions as to nonsuit. These are 2 and 5; the appellant abandoned his third and fourth exceptions. "(2) Because, upon a motion for a nonsuit, his honor should have held that there was not a scintilla of evidence to show that the deceased was killed by the railroad company's carelessness, and should have granted the motion." "(5) Because, on the motion for a nonsuit, his honor should have held that, if the duty of the defendant towards an employé on its track was that it would do him no harm through negligence, then there was no evidence tending to show negligence on the part of the defendant, as the deceased was not shown to have been in a position of danger, and from his position, as explained by the circumstances, must have been apprised of the approach of the train, and that no other inference could be drawn from the testimony." We cannot say, from our examination of the testimony, that there was no material testimony offered by the plaintiff going to show that defendant's carelessness had nothing to do with the death of the night watchman. Certainly, some of the witnesses for the plaintiff testified to matters which tended to establish this carelessness. Nor are we impressed with the fifth exception. We do not think the duty of the railway to its night watchman began and ended with doing him no harm by negligence. It owed him a positive duty to see that no harm came to him in the discharge of his duty from either defendant's servants or machinery. Of course,

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