Towill v. Southern Ry. Co.

• Decision Date: 04 October 1922
• Docket Number: 11022.
• Citation: 114 S.E. 416,121 S.C. 447
• Parties: TOWILL v. SOUTHERN RY. CO. ET AL.
• Court: South Carolina Supreme Court

114 S.E. 416

121 S.C. 447

TOWILL v. SOUTHERN RY. CO. ET AL.

No. 11022.

Supreme Court of South Carolina

October 4, 1922

Appeal from Common Pleas Circuit Court of Lexington County; J. W. De Vore, Judge.

Action by Daisy Pearce Towill, as administratrix of the estate of John Bell Towill, deceased, against the Southern Railway Company, a corporation, and another. From an order of the circuit court granting a petition for removal to the United States District Court, plaintiff appeals. Reversed.

The following are the here essential allegations of the complaint, referred to in the case:

(4) That, on information and belief, plaintiff's intestate, on or about the 8th day of April, 1921, in the evening, went to the station of the defendant Southern Railway Company, in the town of Batesburg aforesaid, with the purpose of becoming a passenger upon the defendant Southern Railway Company's passenger train aforesaid, and in pursuance of said purpose purchased a ticket of the defendant company's ticket agent at its station in the town of Batesburg aforesaid for transportation over its said line of railroad as a passenger on its said passenger train from the town of Batesburg to the town of Johnston in said state, paying for the same the regular price therefor, and thereby then and there became a passenger upon the premises of the defendant Southern Railway Company.

(5) That, on information and belief, while plaintiff's intestate was in the act of boarding the defendant's said passenger train as a passenger thereon at the said station of Batesburg he was thrown and precipitated upon the ground and railway track of the defendant Southern Railway Company and the wheels of the cars of said train passed over the lower extremities of plaintiff's intestate's legs, and crushed, bruised, and mangled the same and severed the feet therefrom, and as a result of the injuries so received plaintiff's intestate died about 10 hours thereafter.

(6) That, on information and belief, the injuries and death of plaintiff's intestate was caused by the joint and concurrent negligent, reckless, wanton, and willful acts and conduct of the defendants in the following particulars, to wit: (a) In causing the passenger train that plaintiff's intestate was attempting to board as a passenger to move suddenly forward without notice or warning, and with a sudden jerk or lurch; (b) In causing the said passenger train to move forward without giving the signals required by law; (c) in failing to furnish reasonable accommodations for the convenience and safety of passengers boarding and alighting from said train as required by law; (d) in failing to keep the right of way adjacent to the railway track, at and near the said station of Batesburg where passengers get on and off of passenger trains, in a good and safe condition and free from hinderances and obstructions to the free and safe passage of passengers using the same for the purpose of getting on and off the passenger trains of the defendants, and in leaving dangerous obstructions on the right of way at and near the point where plaintiff's intestate was in the act of boarding said train; (e) in failing to provide sufficient lights at said station of Batesburg so as to enable passengers to safely get on and off of passenger trains thereat; (f) in failing to keep a proper lookout for the safety of passengers getting on and off of its said trains at said station; (g) in failing to use due and proper care and caution for the safety of passengers getting on and off of the passenger trains at said station and (h) in failing to use any care or caution whatsoever for the safety of passengers, and in the management, control, and movement of the said train at said station--all of which was in utter disregard of the rights of plaintiff's intestate.

(7) That by reason of the aforesaid negligent, reckless willful, and wanton acts and conduct of the defendants in causing the death of plaintiff's intestate and as a direct result thereof, his widow, Daisy Pearce Towill, and his four minor children of tender years, John Bell Towill Jr., Daisy Pearce Towill, Richard Towill, and Angeline Towill, have been deprived of the aid, maintenance, comfort society, council, advice, and education of plaintiff's intestate, the husband and the father, for whose benefit this action is brought pursuant to the statute in such case made and provided, to their damage in the sum of $100,000.

The petition for removal is as follows: Your petitioner, Southern Railway Company, appearing especially and solely for the purpose of making this application to remove this case to the United States District Court for the Eastern District of South Carolina, respectfully shows:

(1) That the controversy in the said suit is a claim and demand by the plaintiff for judgment against your petitioner. Southern Railway Company, and James Harling for damages in the sum of $100,000 and the costs of this action, for the fatal injury to John Bell Towill, the plaintiff's intestate, which the plaintiff alleges was caused on the 8th day of April, 1921, in the town of Batesburg, Lexington county, by the joint and concurrent negligence, recklessness, wantonness, and willfulness of the defendants, in the following particulars, specified in the complaint: (a) In causing the passenger train that plaintiff's intestate was attempting to board as a passenger to move suddenly forward without notice or warning and with a sudden jerk and lurch; (b) in causing the said passenger train to move forward without giving the signals required by law; (c) in failing to furnish reasonable accommodations for the convenience and safety of passengers boarding and alighting from said train as required by law; (d) in failing to keep the right of way adjacent to the railway track at and near the said station of Batesburg where passengers get on and off free from hindrances and obstructions to the free and safe passage of passengers using the same for the purpose of getting on and off the passenger trains of the defendants, and leaving dangerous obstructions on its right of way at and near the point where plaintiff's intestate was in the act of boarding said train; (e) in failing to provide sufficient lights at said station of Batesburg so as to enable passengers to safely get on and off of passenger trains thereat; (f) in failing to keep a proper lookout for the safety of passengers getting on and off of its said trains at said station; (g) in failing to use due and proper care and caution for the safety of passengers getting on and off of the passenger trains at said station; and (h) in failing to use any care or caution whatsoever for the safety of passengers, and in the management, control and movement of the said train at said station; all of which was in utter disregard of the rights of plaintiff's intestate.

It is also alleged that the plaintiff's intestate, John Bell Towill, was in the act of boarding the train, when he was thrown to the ground and the wheels of the cars passed over his extremities, causing his death; and that the defendant, James Harling, was the conductor, in charge of the train.

(1) That the controversy in the suit is between the plaintiff, a resident of the state of South Carolina, duly qualified administratrix of the estate of John Bell Towill, deceased, at the time of his death, also a resident of the state of South Carolina, and Southern Railway Company, petitioner, a corporation duly chartered and existing under the laws of the state of Virginia, which was at the time of the commencement of this suit, and still is, a citizen of the state of Virginia, and a nonresident of the state of South Carolina, and James Harling, a citizen of the state of South Carolina, residing at Columbia, in the Eastern District of said state, and that the plaintiff is a citizen residing, and her intestate was a citizen residing, in the Eastern District of South Carolina. And this petitioner is informed, believes, and alleges that the said John Bell Towill and the petitioner, his wife, had resided for years in the town of Batesburg, and were familiar with the movements of this petitioner's passenger trains at Batesburg and with its station premises.

(2) That the petitioner's train in question, moving from Columbia to Augusta, was due to stop at Batesburg 20 minutes for dinner; that upon its arrival at Batesburg at the time alleged in the complaint the conductor announced in the coaches that it would stop 20 minutes for dinner; that at the expiration of 25 minutes, it moved forward in the usual manner, the conductor having given the usual warning, by calling, "All aboard," and signaled the engineer forward; that all the passengers, so far as the conductor saw and knew, had entered the train before it was signaled forward; that the passenger station and the passenger landing at Batesburg were on the south, or left-hand, side of the train moving to Augusta, and passengers were not expected or invited to enter the train from the opposite side.

(3) That a few minutes after the train arrived at Batesburg on the evening of the alleged injury the said John Bell Towill boarded it as a passenger; that, without the knowledge of the conductor, he then left the train and went to a store in the town of Batesburg; that, after the passengers had boarded the train and it was moving forward the said John Bell Towill attempted to board the train on the wrong side, that is, on the side opposite the passenger station and passenger landing, out of the view of the conductor, and at a place at which passengers are not invited or expected to board the train, as the said decedent very well knew, and on the side on which the conductor does not expect passengers and does not look out for them, and he was there injured.

(4)

...