Trimmier v. Atlantic & C.A.L. Ry. Co.

• Decision Date: 01 September 1908
• Citation: 62 S.E. 209,81 S.C. 203
• Parties: TRIMMIER v. ATLANTIC & C. A. L. RY. CO.
• Court: South Carolina Supreme Court

62 S.E. 209

81 S.C. 203

TRIMMIER v. ATLANTIC & C. A. L. RY. CO.

Supreme Court of South Carolina

September 1, 1908

Appeal from Common Pleas Circuit Court of Spartaburg County; R. C Watts, Judge.

Action by T. R. Trimmier, administrator, against the Atlantic & Charlotte Air Line Railway Company. Judgment for plaintiff and defendant appeals. Reversed.

Gary A. J., dissenting in part.

Where a motion for new trial involves a question of fact, the fact that the judge in overruling the same assigned an erroneous reason is not ground for reversal, unless it further appears that but for such reason a new trial would have been granted.

This is an action to recover damages alleged to have been sustained as the result of negligence, wantonness, and recklessness on the part of the defendant, which caused the death of plaintiff's intestate.

The allegations of the complaint are as follows: "(1) That the defendant is now, and at the times hereinafter mentioned was, a corporation duly chartered under the laws of this state, owning and operating a railroad running from the city of Spartanburg to the city of Greenville, in this state. (2) That on September 9, 1905, J. W. Allison was employed as a freight conductor by defendant in running a freight train from Salisbury, N. C., to Greenville, S.C. (3) That on said day the deceased, J. W. Allison, ran his train into the yards of the defendant located at Spartanburg Junction, and delivered the same to the yardmaster, whose duty it was to receive the same, and take off the cars destined for said junction and other points requiring a shift, and add thereto cars from said junction to point beyond. (4) That defendant had taken from the train the cars destined for other points or such cars as it decided should not go further with the train, upon which deceased was conductor, and was proceeding to shift the same onto another track than that upon which deceased was standing in a safe place, in the discharge of his duty, near his train, but instead of shifting said cars onto another track, as it was its duty to do, the defendant deliberately, carelessly, negligently, willfully, wantonly and in utter disregard of the rights of plaintiff, deceased, and without any notice whatever to him, ran said cars back onto the track where the deceased was walking in the discharge of his duty, with his back turned to the cars just taken away, so that said cars overtook the deceased, striking him in his back, hurling him upon the track and rails, so that his body was severed in twain by the wheels of said cars, thereby taking his life instantly, to the great damage of plaintiff and those for whom he sues in the sum of $50,000. (5) That said defendant willfully, wantonly, carelessly, negligently, and in utter disregard of the rights of the deceased, J. W. Allison, failed to provide a proper lookout on the rear of its freight train which was being shifted in its said yards, and, by reason thereof, the deceased, J. W. Allison, while in the discharge of his duty, without any warning or notice to him whatever, was ruthlessly run over by said train. (6) That on the _____ day of _____, 1906, plaintiff was duly appointed administrator of the estate of J. W. Allison, deceased, by J. J. Gentry, probate judge of said county, and brings this action for the benefit of Andrew N. Allison, the father of the deceased; he being unmarried."

The defendant denied each and every allegation of the complaint, and set up the following defenses: "(1) For a defense defendant alleges that J. W. Allison, while in charge of such train, carelessly and negligently, willfully, and wantonly failed to perform his duties as such conductor, and carelessly, negligently, willfully, and wantonly threw open a switch in said yard, thereby causing the said train to be diverted from the track along which the said Allison was carelessly, willfully, negligently, and wantonly walking, without paying attention and without looking to see whether he had thrown the switch in the proper way, and without paying attention to which track the cars were entering, and that any injuries which came to him were caused by his own acts as aforesaid, all of which caused and contributed to his death. (2) That this defendant further alleges that the deceased, J. W. Allison, assumed all the risks of walking along on the track where he was, and assumed the risks of being hit by a moving car or engine when he walked between the rails of the railway company, or so near that a passing car could not pass without hitting him, when he knew, or ought to have known, that it was dangerous for him to walk between said tracks, or so near to them as to be hit by a moving car or engine, and he further assumed the risks when he threw the switch, as he did, without paying attention to what he was doing, and without throwing it in the way he should have thrown it, and that his death was caused by the risks assumed by him, as hereinbefore stated. (3) This defendant for a still further defense says that when the deceased walked along the rails of the railway track, or so near as to be hit by a passing car which was being moved by his fellow servants, he assumed the risks of the carelessness and negligence of his fellow servants, and that his death was caused by the risks assumed by him as hereinbefore stated."

At the conclusion of the testimony in chief for plaintiff, the defendant moved for a nonsuit on the following grounds: "(1) Because there was no evidence showing any negligence, as alleged in the complaint, on the part of the defendant. (2) Because the evidence was altogether conjectural as to how the death of J. W. Allison occurred." This motion was refused.

At the conclusion of all the testimony, the defendant moved the court to direct a verdict in favor of the defendant on the grounds: "(1) Because the action is brought by the plaintiff in his individual capacity, and not as administrator. The title of the case is 'T. R. Trimmier, Administrator of J. W. Allison, Plaintiff, v. Atlanta & Charlotte Air Line Railway Company, Defendant.' (2) Because even if this action is brought by T. R. Trimmier 'as administrator,' instead of in his individual capacity, yet the evidence is that letters of administration were granted to T. R. Trimmier officially 'as clerk of the court' of common pleas, for Spartanburg county, instead of T. R. Trimmier individually, and the action here is brought by him, not in his official capacity 'as clerk of the court,' but by him as T. R. Trimmier, administrator; the evidence showing that there is no such administrator of the estate of J. W. Allison. (3) Because the records introduced in evidence show that the probate court had no jurisdiction to grant letters of administration to T. R. Trimmier in his official capacity 'as clerk of the court of common pleas' for Spartanburg county, for the reason that the petition does not set out the 'value, nature, or character, of the estate' of the deceased, as the act requires. (4) Because the petition for letters of administration, which was introduced in evidence, was filed by T. R. Trimmier in his official capacity 'as clerk of the court of common pleas' for Spartanburg county before six months had expired from the date of the death of the intestate, and therefore the probate court had no jurisdiction to grant letters of administration to the clerk of court of common pleas. (5) Because there was no negligence shown on the part of the defendant. (6) Because the evidence is speculative and conjectural as to how the accident occurred, or as to how the switches were changed. (7) Because plaintiff's intestate was guilty of contributory negligence." This was also refused.

The jury rendered a verdict in favor of the plaintiff for $18,833.33, whereupon the defendant made a motion for a new trial, on grounds mentioned in the following order, refusing the same: "A motion was made before me for a new trial in above case on the grounds set out in the notice, and I have carefully gone over the same. In my opinion the jury were justified in finding a verdict for the plaintiff under the testimony in the case. ...