Sutton v. Southern Ry. Co.

• Decision Date: 09 April 1909
• Citation: 64 S.E. 401,82 S.C. 345
• Parties: SUTTON v. SOUTHERN RY. CO. et al.
• Court: South Carolina Supreme Court

64 S.E. 401

82 S.C. 345

SUTTON v. SOUTHERN RY. CO. et al.

Supreme Court of South Carolina

April 9, 1909

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

Action by J. M. Sutton against the Southern Railway Company and F G. Whitlock. Judgment for plaintiff, and defendants appeal. Affirmed as to the railway company, and reversed as to defendant Whitlock.

J. E McDonald, for appellants.

J. C Wilburn and G. W. S. Hart, for respondent.

JONES J.

The plaintiff recovered judgment against the defendants for $1,350 as damages for personal injuries alleged to have been sustained by reason of a rear-end collision between two of defendant's trains at Pineville, N. C., on November 28, 1905, while plaintiff was a passenger on one of said trains. The defendants made a motion to direct a verdict and a motion for new trial on the ground that there was no testimony to sustain the allegations of negligence set forth in the complaint, which motions were refused, and these rulings are the main subject of exception. The complaint alleged that defendant Southern Railway Company was a common carrier of passengers operating a railroad from Columbia, S. C., to Charlotte, N. C.; that plaintiff was received in one of its trains as a passenger from Ft. Mill, S. C., to Charlotte, N. C.; that F. G. Whitlock was agent of defendant railway company at Ft. Mill, S.C. The allegations to which special attention is directed are in the fourth and fifth paragraphs, as follows:

"(4) That at the time aforesaid, to wit, on or about the 28th of November, 1905, the defendants herein negligently permitted one of the trains of the defendant railway company, following the train upon which plaintiff was being transported as a passenger, as aforesaid, to collide with the train upon which plaintiff had taken passage and was being transported, the collision being a rear-end collision, and the negligence of F. G. Whitlock, the agent and servant of his codefendant, consisting in his failure to give notice to the following train that the train upon which the plaintiff was riding was ahead of it upon the same track, preceding it in the direction of Charlotte, N. C., which negligence was also the negligence of the defendant railway company.

"(5) That in the collision which occurred as hereinbefore set forth a heavy lamp frame in the car upon and in which the plaintiff was riding, with a lamp in it, was forcibly wrenched by the shock from its fastening, and fell upon and struck the plaintiff on the head, rendering him unconscious; and in the jar incident to and produced by the collision the plaintiff was thrown about in the car, and was wounded and bruised. ***"

Appellants contend that the only specific act of negligence alleged is the failure of Whitlock "to give notice to the following train that the train upon which the plaintiff was riding was ahead of it upon the same track"; that no testimony was offered to prove that it was the duty of Whitlock to give such notice; that the general allegation of negligence was controlled by the specific act alleged; and that, therefore plaintiff had failed to establish any case under the complaint. The general rule upon which appellant relies is thus stated in Goodwin v. Railway, 76 S.C. 560, 57 S.E. 531: "Where a complaint is general in its allegations of negligence, and the defendant does not move to have the allegations made definite and certain, the plaintiff may introduce under the general allegations any competent evidence to support the charge of negligence (Spires v. Railroad Co., 47 S.C. 30, 24 S.E. 992; Johnson v. Railroad Co., 53 S.C. 303, 31 S.E. 212, 69 Am. St. Rep. 849), but, where the complaint alleges specific acts of negligence, the plaintiff is restricted to proof of such acts of negligence (Fell v. Railroad Co., 33 S.C. 198, 11 S.E. 691; Jenkins v. McCarthy, 45 S.C. 278, 22 S.E. 883; Brown v. Railroad Co., 57 S.C. 435, 35 S.E. 731). So, when a complaint contains allegations of specific acts of negligence and also general allegations of negligence, the general allegations should be regarded as explained and controlled by the specific acts of negligence averred, in the...