Seay v. Southern Ry. Co.

• Decision Date: 16 March 1946
• Docket Number: 15817.
• Citation: 37 S.E.2d 535,208 S.C. 171
• Parties: SEAY et al. v. SOUTHERN RY. CO. et al.
• Court: South Carolina Supreme Court

37 S.E.2d 535

208 S.C. 171

SEAY et al. v. SOUTHERN RY. CO. et al.

No. 15817.

Supreme Court of South Carolina

March 16, 1946

Carlisle, Brown & Carlisle and C. C. Brown, all of Spartanburg, for appellants.

Sam R. Watt and C. E. Daniel, both of Spartanburg for respondents.

PER CURIAM.

The rehearing of this case convinces us of the correctness of the opinion first filed, although we amplify same.

This action is the 'second section' of that action brought by the identical plaintiffs against the identical defendants with the exception that Southern Railway Company, and not Southern Railway--Carolina Division, is the codefendant with Charleston & Western Carolina Railway Company in the present suit, for the wrongful death of Joe Walter Seay. See Seay et al. v. Southern Railway Carolina Division et al., 205 S.C. 162, 31 S.E.2d 133. That is to say, the present action is for the recovery of damages for the alleged pain and suffering of said Joe Walter Seay, deceased following his injury and until his death, approximately six hours after his injury.

For the purpose of deciding this appeal, it is unnecessary that we state or discuss the testimony tending to prove negligence in the operation of a train--engine and two gondola cars--being backed on the track of the defendant, Charleston &amp Western Carolina Railway Company, which crosses West Main Street in the City of Spartanburg, said street being a section of United States Highway No. 29, running North and South through the said City of Spartanburg. (The testimony tending to prove negligence in the operation of the train was similar to the testimony in the first case for the wrongful death of Joe Walter Seay.)

A large truck driven by Joe Seay was in collision with, as alleged in the complaint (quoting), ' one of two gondola cars loaded with metal junk and being pushed by a railroad locomotive all belonging to Southern Railway Company, on the railroad track of Charleston & Western Carolina Railway Company' (italics added).

At the close of plaintiffs' (appellants') testimony, the defendants (respondents) moved for a nonsuit as to both defendants, on several grounds, the one pertinent to this appeal being, as to Southern Railway Company, 'there is not a syllable of testimony that its engine and crew were pushing this train across the crossing'; and as to the Charleston & Western Carolina Railway Company, 'there is no allegation or proof whatever of negligence on its part.'

After considerable argument, with the appellants in the meanwhile requesting that the case be opened for the purpose of permitting them to adduce testimony tending to prove that it was the Southern Railway Company's engine and crew pushing the gondola cars, reference to which will hereafter be made, the trial Judge granted the motion, using the language following:

'I do not think there has been sufficient evidence to go to the jury, certainly nothing to connect the Southern Railway Co. While the theory is that the Southern was operating over the C. & W. C. lines, there is no evidence to that effect and I am granting a non-suit as to both defendants.'

We have carefully read the record, and there is no testimony whatsoever connecting the defendant-respondent, Southern Railway Company, with the accident resulting in the injury and death of Joe Walter Seay, and hence a nonsuit as to this defendant was proper.

While there is no allegation or proof of negligence on the part of the Charleston & Western Carolina Railway Company, yet a reasonable inference can be drawn from the testimony that the track on which the engine and gondola cars were travelling was that of the last named railroad company and the established law of this State is that 'both the lessor and lessee, licensor and licensee, are responsible for any damages arising out of the operation of the railroad.' Miller v. Atlantic C. L....