Seyle v. Charleston Terminal Co.

• Decision Date: 23 December 1916
• Docket Number: 9566.
• Citation: 90 S.E. 1016,106 S.C. 215
• Parties: SEYLE v. CHARLESTON TERMINAL CO.
• Court: South Carolina Supreme Court

90 S.E. 1016

106 S.C. 215

SEYLE v. CHARLESTON TERMINAL CO.

No. 9566.

Supreme Court of South Carolina

December 23, 1916

Appeal from Common Pleas Circuit Court of Charleston County; John S Wilson, Judge.

Action by John F. Seyle, Administrator of John H. Seyle, deceased against the Charleston Terminal Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded for new trial.

Logan & Grace, of Charleston, for appellant.

Mitchell & Smith and Mordecai & Gadsden & Rutledge, all of Charleston for respondent.

GARY C.J.

This is an action for actual and punitive damages, arising out of the death of plaintiff's intestate, alleged to have been caused by the negligence and wantonness of the defendant. The complaint thus describes the manner, in which the plaintiff's intestate was killed:

"That, as plaintiff is informed and believes, on or about the 24th day of October, 1913, plaintiff's intestate, John H. Seyle, was in the employ of said defendant corporation as a conductor, and as such in the course of his employment and duty it was necessary for him to ride on top of the cars on the line of railroad operated by said defendant corporation; that on or about the night of said 24th day of October, 1913, plaintiff's intestate was riding on top of a car forming one of a train on the line of railroad operated by said defendant corporation, and while on said car it suddenly gave an unusual and extraordinary jolt jar, and jerk, causing said plaintiff's intestate to be thrown off said car and onto the track beneath said train; that said train, or a portion thereof, passed over said plaintiff's intestate and left him lying helpless on said track; that while said plaintiff's intestate was on said track and endeavoring to raise himself up, but was in a practically helpless condition, an engine and tender, run, managed, and operated by said defendant corporation, its agents and servants, and manned by a crew which was seeking plaintiff's intestate, without notice or warning, and running at a high and dangerous rate of speed, ran down on said plaintiff's intestate."

The acts of wrong on the part of the defendant are thus specified:

"(a) In causing and allowing said car, on which the plaintiff's intestate was riding to be moved with a sudden, unusual, and extraordinary jolt, jar, and jerk. (b) In running down upon plaintiff's intestate, while he was on the track in a dazed and helpless condition. (c) In not taking any care or precaution to observe that plaintiff's intestate was missing from the top of said train cars, and at once stopping said train and making search for said plaintiff's intestate. (d) In not so managing and running its engine and tender that it would not have run down and upon plaintiff's intestate, while he was helpless and dazed upon the track."

The defendant alleges that the death of John H. Seyle, the deceased, was caused by his negligence, which was so gross as to amount to willfulness, in that, while the deceased was on top of one of defendant's cars, which was being moved by signals given by him, he assumed a position so near the end of the said car, while the train was moving slowly, that he lost his balance and fell or missed his footing; that the said train ran over him, and caused the injuries from which he died. When the case was being tried the first time, it appeared upon the cross-examination of the plaintiff's witnesses that the defendant was engaged in interstate commerce. Thereupon the plaintiff's attorneys stated that they were taken by surprise, and upon their motion it was ordered that the case be withdrawn from the jury and continued, with leave to the plaintiff, to amend his complaint so as to conform to the proof, and to bring the action under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, §§ 8657-8665]) if so advised. The plaintiff did not deem it advisable to make any changes in the complaint. At the close of the plaintiff's testimony upon the second trial, the defendant made a motion for a nonsuit, on the following grounds:

"That there is a total failure of evidence, of any of the acts of negligence alleged in the complaint, and there is no evidence that any act of negligence alleged in the complaint constituted the proximate cause of the injury. That even if it were so that there was any evidence of any of the acts of negligence, alleged in the complaint, constituting the proximate cause of the injury, it appears in evidence that the train causing the alleged injury was engaged in interstate commerce, and that the deceased was working for the defendant in such interstate commerce, at the time of

...