Slater v. South Carolina Ry. Co

• Decision Date: 02 July 1888
• Parties: Slater v. South Carolina Ry. Co.
• Court: South Carolina Supreme Court

6 S.E. 936

(29 S.C. 96)

Slater

v.South Carolina Ry. Co.

Supreme Court of South Carolina.

July 2, 1888.

Carrier—Liability for Loss—Act of God—Nonsuit.

In an action against a common carrier for injury to property in transportation, the defense that the injury was caused entirely by an earthquake, and was accompanied by no negligence on the part of defendant, such that if it had not been present the injury would not have happened, is, if true, a sufficient defense; and where the defenses admitted, or not seriously controverted by plaintiff, a nonsuit will be granted.

Appeal from common pleas circuit court of Orangeburg county; B. C. Press-ley, Presiding Judge.

Action by Edward F. Slater against the South Carolina Railway Company, to recover damages for injuries to certain horses and mules shipped by plaintiff upon defendant's road. The court granted a nonsuit and plaintiff appeals.

Thomas M. Raysor and Lathrop & Wannamaker, for appellant.

Brawley & Bornwell and Izlar & Glaze, for respondent.

Simpson, C. J. In the case below, the plaintiff sought to recover damages from the defendant, a railway corporation, for alleged injuries to certain horses and mules shipped by plaintiff at Augusta, Ga., and consigned to plaintiff at Orangeburg, in this state. The main defense set up was that the injury complained of resulted from the direct act of God, to-wit, the recent earthquake, "on the night of 31st of August, 1886, which was unforeseen, unprecedented, and providential, setting loose the waters confined in the pond at Langley mill, adjacent to the track of said defendant, near Horse creek, a locality on the road; and said waters being irresistible in their violence swept away and destroyed the said horses and mules which were not delivered, and injured the rest in some degree, the defendant having exercised due care and diligence, both in the transportation of said horses and in an effort to save them." At the close of plaintiff's testimony, from which it appeared, through the cross-examination by defendant's attorney, that in all probability the injury resulted from the earthquake, the presiding judge, on motion of defendant, granted a nonsuit, on the ground that he was satisfied that the earthquake—an act of God—caused the injury, and that there was no sufficient evidence of negligence on the part of the defendant to carry the case to the jury. The appeal questions this ruling of his honor. A common carrier, at common law, is an insurer against all injuries to the property in transit, except such as may be caused by an act of God, or of the public enemies, or by some excepted cause in a special contract, other than negligence, and the defendant not having contributed thereto by his negligence; and the onus is upon the defendant to show the cause claimed as a defense. The recent case in our own court of Wallingford v. Railroad Co., 2 S. E. Rep. 19, is sufficient authority here. The law in reference to nonsuits has been stated in several recent cases. In brief terms it is as follows: A nonsuit should be granted where there is a total absence of testimony to all or to any one of the material averments in plaintiff...