Sharpe v. Southern Ry. Co.
Decision Date | 16 May 1923 |
Docket Number | 11233. |
Parties | SHARPE v. SOUTHERN RY. CO. ET AL. |
Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court, Lexington County; Ernest Moore, Judge.
Action by S. Paul Sharpe, as executor of the last will and testament of James A. Sharpe, deceased, against the Southern Railway Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.
Frank G. Tompkins, of Columbia, George B. Cromer, of Newberry, and C. M. Efird, of Lexington, for appellants.
Timmerman & Graham and T. C. Sturkie, all of Lexington, for respondent.
This is an action for damages for the killing of the plaintiff's testator. The jury found for the plaintiff, and the defendant appealed. The appeal contends that there was no evidence of negligence on the part of the defendant, and conclusive evidence of contributory negligence.
Judge Moore, who heard the case on circuit, gave his reasons for not granting a new trial as follows:
These reasons are entirely satisfactory to this court.
II. Contributory negligence is a question for the jury. The case of Davis v. Payne (S. C.) 113 S.E. 326, does not sustain the appellant. In that case there was no evidence of negligence on the part of the defendant, and Miss Davis deliberately walked into a death trap.
The judgment is affirmed.
It is alleged in the complaint that the plaintiff's testator, while walking along the defendant's track on a footpath at the end of the cross-ties, sat down on the end of one of the cross-ties for the purpose of resting, and fell asleep, and that while in that position he was negligently and recklessly run down and killed by one of defendant's locomotives. The circuit judge, in passing on motion for new trial, found that the evidence tended to establish the foregoing allegations of the complaint and that plaintiff's testator "was struck and killed by a locomotive engine while sitting on the end of one of the cross-ties on the railroad track with his feet resting in the traveled place along by the end thereof." The place of the collision was at least 150 yards away from any public road crossing. The casualty occurred at night, apparently between 12 and 1 o'clock. It is undisputed that decedent was not seen on the track, or in the path, by the engineer or fireman on the locomotive engine. The circuit judge correctly ruled that there was no evidence to support a verdict of punitive damages, and directed a verdict for the defendant as to the cause of action based on willfulness, wantonness, etc.
I think it is clear that it should be held as a matter of law that plaintiff's testator was guilty of contributory negligence. If so--the question of willfulness and wantonness being eliminated from the case--it follows that plaintiff was not entitled to recover. This point was perhaps not as definitely and distinctly raised upon the...
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