Thornton v. Seaboard Air Line Ry.

• Citation: 82 S.E. 433,98 S.C. 348
• Decision Date: 22 April 1914
• Docket Number: 8819.
• Parties: THORNTON v. SEABOARD AIR LINE RY.
• Court: South Carolina Supreme Court

82 S.E. 433

98 S.C. 348

THORNTON v. SEABOARD AIR LINE RY.

No. 8819.

Supreme Court of South Carolina

April 22, 1914

Appeal from Common Pleas Circuit Court of Abbeville County.

Action by Ella M. Thornton, as administratrix, etc., of J. F Thornton, against the Seaboard Air Line Railway. From a judgment for plaintiff, defendant appeals. Affirmed.

The following are the eighth and ninth requests to charge:

VIII. You must consider in estimating damages, if any damages are awarded, the probable duration of the contributions which husband and father would have made to his wife and children and in arriving at this, you should consider the probable expectancy of the life of the husband and father, how long he would have lived to have given them money, you must also bear in mind the probable duration of the contributions to the children, one of whom is now married and the other of whom is a boy 14 years of age, and you must consider that there is no legal responsibility resting upon the father to support the children that arrive at the age of 21 years.

By the Court: I charge you that, Mr. Foreman, if you should find that one of the children is married and the other a boy 14 years of age; if you should find those to be the facts then you are to take into consideration those facts in determining how long the father would have probably contributed to their support in getting at the amount.

IX. If you conclude to award damages, you are to consider the probabilities whether or not the father's contributions to the children would have ceased when they reached the age of maturity, or at their marriage, or whether they would have ceased before that time.

By the Court: I charge you that, Mr. Foreman, but I charge you that after reaching the age of 21 years, or married, children are not permitted to recover; a father may not be legally responsible for the support and maintenance of his children after they are 21 years of age, but if they should be sick and helpless, they would have a right to expect the parents to assist them in making a support. You are to take into consideration what they would reasonably have a right to expect in the event of such conditions.

J. L. Glenn, of Chester, and Greene & Hill, of Abbeville, for appellant.

Wm. N. Graydon, of Abbeville, for respondent.

WATTS J.

This was an action by the plaintiff for the alleged wrongful killing of plaintiff's intestate, J. F. Thornton, by the defendant for damages under the federal Employers' Liability Act. The cause was tried before his honor, Judge Prince, and a jury, at the April term of the court, 1913, for Abbeville county, and resulted in a verdict in favor of the plaintiff for $8,500. After entry of judgment the defendant appeals, and by 19 exceptions, some of which are subdivided, complains of error on the part of his honor but raises practically but six questions.

1. Error in allowing the plaintiff to amend her complaint. At the hearing of the case in this court the defendant abandoned this exception.

The second question raised by the exceptions alleges error in refusing to direct a verdict for the defendant as moved for as set out in exceptions 2, 3, and 4. It is so well settled that, if there is any competent testimony to go to the jury, a nonsuit cannot be granted or verdict directed that quotation of authority is unnecessary. It has been further decided that the failure to prove one of several acts of negligence alleged does not furnish any ground for the direction of a verdict. Cain v. Railroad Co., 74 S.C. 90, 54 S.E. 244.

"Whenever there is any competent testimony it is the duty of the judge to submit the case to the jury." Buist Co. v. Mercantile Co., 73 S.C. 48, 52 S.E. 789.

There is no dispute that the plaintiff's intestate was killed by the train; that the yards were not lighted; and the evidence shows that there was no one on the back of the cars to give warning, and there is no contention that any warning was given. The question then is: Was the plaintiff's intestate wrongfully or negligently killed by the defendant company, its agents, or servants? A case is usually made out by the positive testimony of eyewitnesses to a transaction who swear they saw the occurrence, and described how it occurs; in this case we have no positive testimony as to how it occurred, as no witness saw how it happened, and we must resort to the evidence of circumstances to arrive at a conclusion as to how it occurred, and say whether or not there was sufficient evidence in the case for his honor to submit the question to the jury as to whether or not he was killed negligently by the defendant in any of the particulars alleged and specified in the complaint. There was evidence in the case to show that when the deceased left the office to inspect train No. 25 coming into the yards at the same time, a switch engine, with a number of cars back of it, was coming down the yard, on this switch engine train there was no light on the rear of the train, which was the front part as it was pushed down the yards; no one was going ahead of it to warn the other employés in the yard; no one was on the front of the leading car, as required by the rules; there was no light on the end of the cars; and no warning was given of its approach. Train No. 25 was coming in on main line when deceased started to inspect it. The switch engine and cars were backing down track No. 1 at the same time No. 25 was coming in the yard. Thornton was missed by White when he started to inspect train No. 25. His evidence is that there was a car five or six cars from the caboose, that had some flat wheels, and he stopped there to see about the wheels, and also looked for Thornton, but did not see him, as he was not on the other side of the car where he should have been. White and Thornton, the inspectors, were accustomed to walk down to the train as it came into the yard, watch the train as it passed by, so that the time the train stopped they would be at the rear of the train, when they would start the inspection. On this night White, one of the inspectors, got to the station, but saw nothing of Thornton. After inspecting the train on both sides and still seeing nothing of Thornton, he mentioned this to several persons, and reported to them that Thornton was missing. White then inspected two trains before he heard that Thornton had been killed. When White first saw him after he was killed he was lying on track No. 1 south of the office, at the shops. It would appear from the evidence that he was killed on the north side of the office and dragged down track No. 1 to the south side. The cars that were cut were backed down track No. 1 for the purpose of attaching them to the rear end of No. 25, which was to run from there to Atlanta as a double-header. The evidence further shows that the cap and torch of Thornton were found last, on north of office, the cap between track No. 1 and the main line, the torch about two yards off. Some parts of his clothing were found in the middle of track No. 1, and there were signs that he had been dragged in the middle of track No. 1. The conductor of train No. 25 having heard of his death examined his train at Elberton, Ga.; he found pieces of flesh on the ninth car from the caboose, and on up for several cars towards the engine, thus creating an inference that the cut off cars when they were backed down track No. 1 might have run over and killed Thornton, and then dragged the body down the track, dragged the body towards the depot, and then dragged it back past the office to the south side of the office. A number of cars had run over him. Eighteen cars from the rear end had been shoved down the track. The signs of dragging were first seen about 150 yards north of the office, and there were signs that he had been dragged down approximately 100 yards south of the office. The evidence was that the yard was dark. It was in evidence that the boy who found the body could not tell what it was until he struck a match. There was evidence that another train, No. 22,...