Tyner v. Atlantic Coast Line R. Co.
Decision Date | 16 November 1927 |
Docket Number | 12321. |
Parties | TYNER v. ATLANTIC COAST LINE R. CO. |
Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Charleston County; J. W De Vore, Judge.
Action by C. M. Tyner, as administrator of George A. Marshall deceased, against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Exceptions Nos. 14, 15, 19, 20, and 22, are as follows:
Hyde, Mann & Figg, of Charleston, Thos. W. Davis, of Wilmington, N. C., F. B. Grier, of Greenwood, and V. E. Phelps, of Wilmington, N. C., for appellant.
Logan & Grace and Lionel K. Legge all of Charleston, for respondent.
On January 6, 1923, George A. Marshall, employed as a switchman by the defendant railroad company, was killed while in such employment. He left surviving him a widow and three small children, for whose benefit this action was brought under the Federal Employers' Liability Act (45 USCA §§ 51-59) by the plaintiff as administrator of Marshall's estate. It was agreed at the trial of the case that at the time Marshall met his death both he and the railroad company were engaged in interstate commerce.
The plaintiff, upon information and belief, alleges that, at the time Marshall was killed, he was engaged in the performance of his duties as a switchman on an engine and train of cars moving over defendant's main line of tracks near and in the direction of the city of Charleston; that it was about 3 o'clock in the morning and was dark and foggy; that near the city the train of cars and engine were stopped because of some trouble with the brakes on some of the cars, and that Marshall, in the course of his employment and duty, got down to the ground to examine into and correct the trouble; that the defendant, in violation of its duty to furnish a reasonably safe roadbed and track free from obstructions for the use of its employees, had placed and maintained a signal device or obstruction in such close proximity to the track as not to leave a sufficient space intervening between it and the side of the train, and so close as to interfere with the proper operation of the defendant's trains; and that, upon the train's proceeding forward, while Marshall was mounting the ladder of one of the cars or was examining the defective car referred to, he was struck by the signal device, and was so injured as to cause his death. The plaintiff alleged that Marshall's death resulted from the negligent and reckless acts of the defendant, in the following particulars:
The defendant pleaded that it had complied with a resolution of the South Caroline Railroad Commission, set out in its answer, in the erection of the signal device mentioned in the complaint, set up the assumption of risk on the part of the decedent, and pleaded contributory negligence on the part of Marshall, as follows:
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