Sims v. Southern Ry. Co.

• Citation: 45 S.E. 90,66 S.C. 520
• Parties: SIMS v. SOUTHERN RY. CO.
• Decision Date: 02 July 1903
• Court: South Carolina Supreme Court

45 S.E. 90

66 S.C. 520

SIMS v. SOUTHERN RY. CO.

Supreme Court of South Carolina

July 2, 1903

Appeal from Common Pleas Circuit Court of Kershaw County; Dantzler Judge.

Action by Ransom Sims against the Southern Railway Company. From order of nonsuit, plaintiff appeals. Reversed.

W. D Trantham, for appellant. B. L. Abney and E. M. Thomson, for respondent.

POPE J.

The questions raised by this appeal grow out of a nonsuit granted by his honor, Judge Dantzler, after plaintiff had closed his testimony in a trial before a jury. The plaintiff had alleged in his complaint that, while in the employ of the defendant as a fireman on the steam engine known as "No. 29," he had received injuries to his head, his back, his leg, his ankle, his knees, his neck, and his eyes, which injuries occurred to him by reason of the gross negligence of the defendant in failing to keep its roadbed from Camden to Kingsville in proper and first-class repair, for want of work and new cross-ties, particularly where the two wheels of the engine broke off or ran off of said "No. 29," and also that it was grossly negligent, in that it suffered to be used on its road an old and worn out engine, as "No 29" was, which was liable to break down at any time, and also that it was grossly negligent not to have one of its steps to its cab repaired. The plaintiff had offered testimony on each allegation of negligence of the defendant but at the close of plaintiff's testimony a motion for a nonsuit was made by the defendant on the following grounds:

"(1) There has been no evidence offered showing or tending to show any negligence on the part of the defendant company. In other words, under the decisions of the Supreme Court of the state, it is not only necessary for the plaintiff in a case of this kind to show that the injury results from the defective machinery, but the proof must go further and show the master's negligence or want of reasonable care in purchasing and overlooking the machinery was the cause of his having defective machinery in use.

(2) There is no evidence showing or tending to show that the alleged negligence was the proximate cause of the alleged accident and injury.

(3) Even assuming that there is evidence showing or tending to show any negligence, then, under the testimony of the plaintiff, it is the negligence of the engineer of the train on which he was employed, who was his fellow servant, and for which negligence the railroad company is not liable."

In granting, and preliminary to granting, the nonsuit, the circuit judge said:

"It is not only incumbent upon the plaintiff to show that there was defective machinery, but it is also incumbent upon the plaintiff to show that the master did not exercise reasonable care in overlooking the machinery. Now, those are two facts which the plaintiff must prove when he seeks to recover damages by virtue of defective machinery--two things: First, he must show the machinery was defective; and in the next place he must show the master was negligent in not exercising reasonable care in overlooking the machinery. Now, as I intimated yesterday, it would be almost childishness on my part, certainly I would not be measuring up to my full responsibility, if I considered the testimony in a case as not showing, as not tending to show, or as not being responsive to the allegations of the complaint, and let the case go to the jury, and allow about two hours to be consumed in argument, and, if the jury find a verdict in favor of the plaintiff, set it aside. It would amount to my shirking my responsibility for the time being to place it upon the jury, and, if the jury fail to render a proper verdict, in my judgment, then to assume, or reassume, the responsibility and set the verdict aside. I am not disposed to grant nonsuits if there is any evidence at all, but I thought about this question after I left here last night. So far as I can see from the testimony, I cannot recall any testimony which tends to show that the defendant in this case was guilty of negligence, and, that being incumbent upon the plaintiff to show, and having failed to show that, I will have to grant the nonsuit. I don't see any other escape from it. Prepare the order .

Order for nonsuit: A motion for nonsuit having been made herein, at the close of plaintiff's testimony, upon the grounds taken down by the stenographer, it is, after argument, ordered that the motion be granted upon the grounds and for the reason stated orally by the court and taken down by the stenographer."

Thereupon the plaintiff appeals from the order on the following grounds:

"(1) Because his honor erred in holding that there was no evidence showing, or tending to show, that the alleged injury resulted from negligence on the part of the defendant.

(2) Because his honor erred in that he did not hold that the evidence that the axles of the engine had 'old cracks' in them when they broke off, that the engine was old and worn, and 'jerked on its boxes,' and that it was in that respect defective, and that such was evidence that should have gone to the jury.

(3) Because his honor erred in that he did not hold that the evidence showed, or tended to show, that the track was in bad repair, and that in passing over it the engine was jostled jolted, or bumped at the time or immediately before the wheels broke off.

(4) Because his honor erred in that he held that there was nothing to show that the defendant did not exercise reasonable care in overlooking its machinery and track.

(5) Because his honor erred in that he did not hold that the condition of the engine as to the 'old cracks' and the breaking of the axles, coupled with the fact that the same engine had broken off the axles of its driving wheels the year before, and the condition of the track at the time or immediately before the wheels ran off, as evidenced by the jolting or bumping of the engine, was such evidence as should have gone to the jury, who should have determined whether the defendant exercised reasonable care in overlooking its machinery and track.

(6) Because his honor erred in that he did not hold that, if the injury resulted from the failure of the engineer to examine or inspect the engine, such failure or negligence of the engineer cannot affect the plaintiff, who was his fireman, and acting, as shown by the evidence, under and by his direction.

(7) Because, if the injury resulted from the failure of the engineer to examine the engine, the defendant could not thereby be relieved of responsibility, for the reason that, in making such examination or inspection, the engineer would be performing a duty which the law requires of the master, and, if the

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