Towill v. Southern Ry. Co.

• Decision Date: 10 April 1925
• Docket Number: 11744.
• Parties: TOWILL v. SOUTHERN RY. CO. ET AL.
• Court: South Carolina Supreme Court

127 S.E. 559

131 S.C. 425

TOWILL v. SOUTHERN RY. CO. ET AL.

No. 11744.

Supreme Court of South Carolina

April 10, 1925

Appeal from Common Pleas Circuit Court of Lexington County; C.J Ramage, Special Judge.

Action by Daisy Pearce Towill, as administratrix of the estate of John Bell Towill, deceased, against the Southern Railway Company and others. From judgment for plaintiff in amount unsatisfactory to her, both parties appeal. Judgment affirmed.

Timmerman & Graham, of Lexington, for plaintiff.

Frank G. Tompkins, of Columbia, Geo. B. Cromer, of Newberry, and Efird & Carroll and Martin & Sturkie, all of Lexington, for defendants.

WATTS J.

"This action was begun January 14, 1922, for $100,000 damages for the alleged wrongful death of the plaintiff's intestate John Bell Towill, at Batesburg, S. C., April 8, 1921. It is alleged that he was fatally injured by a train of the defendant Southern Railway Company, in charge of the defendant James Harling, as conductor, when he was attempting to board it as a passenger; and that the injury was caused by the joint and concurrent negligent, reckless, wanton, and willful acts of the defendants. The action is brought for the benefit of the widow and four children of the decedent.

The case was tried by Special Judge C.J. Ramage and a jury; and November 24, 1923, a verdict for $7,000 was rendered against the defendants. The appeal of the defendants from the judgment is on the sole ground that the trial judge erred in refusing the motion of the defendants for a directed verdict.

The issue of punitive damages was, on motion of the defendants withdrawn from the jury.

The defendants admitted, at the beginning of the trial, that before the arrival of the train, on the evening of the injury, John Bell Towill purchased a ticket from the agent at Batesburg for the station of Johnston, and the ticket was in evidence.

The plaintiff also in due time gave notice of intention to appeal to the Supreme Court, and her exceptions appear immediately after those of the defendants."

The plaintiff's exceptions, four in number, must be overruled, as no motion was made before the circuit court for a new trial, and plaintiff cannot appeal from a judgment in her own favor.

There is nothing in this case that takes it out of the general rule. No doubt, if a motion had been made in the circuit court for a new trial, that motion would not have been opposed by the defendants.

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