Willoughby v. North Eastern R. Co.

• Decision Date: 28 March 1898
• Citation: 29 S.E. 629,52 S.C. 166
• Parties: WILLOUGHBY et al. v. NORTH EASTERN R. CO.
• Court: South Carolina Supreme Court

29 S.E. 629

52 S.C. 166

WILLOUGHBY et al. v. NORTH EASTERN R. CO.

Supreme Court of South Carolina

March 28, 1898

Appeal from common pleas circuit court of Florence county; D. A Townsend, Judge.

Action by Ella F. Willoughby and another against the North Eastern Railroad Company for damages for tort. Judgment for defendant. Plaintiffs appeal. Affirmed.

W. F Clayton, for appellants.

Theodore G. Barker, Thos. M. Gilland, and P. A. Willcot, for respondent.

BUCHANAN Special Judge.

This case comes up from Florence county, to which county it was removed by order of his honor, Judge D. A. Townsend, of date 27th October, 1894. It was begun in the county of Williamsburg, by the service of summons and complaint, on the 23d day of July, 1889. After setting out the preliminary matter, the complaint alleges for a first cause of action "That on or about the 11th day of August, 1887, at Scranton, in the county of Williamsburg and the state aforesaid, the defendant, with intent to harass, injure, and oppress the plaintiffs, caused a heavy locomotive engine attached to a heavy train of cars, to run, under a full head of steam, upon the railroad of the plaintiff E. F. Willoughby, whereon she was standing, and whereon defendant had no right of way, up to her person, threatening to run over her, and thus violently, and with said locomotive engine and train, assaulted her, and put her in fear of immediate injury, death, and destruction, whereby she suffered great nervous shock, bodily pain, and mental agony, insomuch that she became and was utterly prostrated, and was sick from thence for a long space of time, to the damage of plaintiffs ten thousand dollars." And for a second cause of action: "That at Scranton, in the county of Williamsburg and state aforesaid, on or about the 12th day of August, 1887, while the said E. F. Willoughby was standing on her own land, and on her own railway built upon her own land, and of which she had been, up to the invasion hereinafter mentioned, in the quiet and peaceable possession and enjoyment, the defendant, by its agents and employés thereunto specially ordered and directed, caused a heavy engine, under a full head of steam, to run with great force on said railway towards said E. F. Willoughby, and almost up to her person, threatening to crush her, on said railway, whereby she was assaulted, and put in great fear of immediate death, and the said defendant then and there, by its agents and employés, and the special authority and direction of said defendant, violently assaulted and beat the said E. F. Willoughby by forcibly removing her from her position, and restraining her from her liberty for a considerable space of time, without reasonable cause, and without any right or authority of law, against her will and consent, whereby she was greatly injured, mortified, and humiliated, and was thereby utterly prostrated by nervous debility and mental torture, to the damage of the plaintiff ten thousand dollars. Whereupon plaintiffs demand judgment against the defendant corporation for the sum of twenty-five thousand dollars, and the costs, expenses, and disbursements of this action."

It will be observed that in the complaint there is not any allegation affecting T. C. Willoughby, showing his connection with the subject-matter of this action, further than that contained in first paragraph, wherein it is stated that the plaintiff E. F. Willoughby is the wife of her co-plaintiff, T. C. Willoughby, and was his wife at the time mentioned in the complaint. The whole cause of action grows out of an alleged right in the said Ella F. Willoughby to damages for the torts done to her, and her husband is merely joined in the action for conformity.

The answer alleges that on the 10th, 11th, and 12th days of August, 1887, the defendant, by its agents and employés, entered on the lands upon which the railroad mentioned in the complaint as the railroad of the plaintiff Ella F. Willoughby was located, and alleges that they had a right to enter and to take away the rails, as they were its property, inasmuch as they had been let and hired to the plaintiff Ella F. Willoughby under a special contract, a copy of which was set out as an exhibit, and, after a request by defendant of the said E. F. Willoughby to take up and restore the rails, justified under the terms of the said contract, and that the defendant did nothing except such acts as were really for the purpose of removing such rails. In addition, it denied the assault or trespass alleged in paragraph 3 of the complaint, and insisted that it had a full and complete right of way therein, and entered under its contract, and proceeded carefully in the lawful exercise of its right of way, and that the officers of this corporation controlled the movements of its train, and stood between the plaintiff and the approaching train, and warned her to get off the track, and that, having that right, they touched her person merely to remove her, and then merely gently laid their hands upon her. And, for a further defense, "this defendant alleges that since the commencement of this action the right of the defendant to enter upon the railroad track claimed by the plaintiff, as set forth in complaint, and remove therefrom the rails of defendant, which are mentioned in the contract, a copy of which is hereby annexed, and the right of defendant, after taking up said rails, to come out from said railroad track, to and upon the railroad of this defendant, has been fully and finally adjudged and adjudicated in this court in an action entitled 'Ella F. Willoughby, Plaintiff, against the North Eastern Railroad Company."' Concluding, the defendant denied each and every allegation of the complaint inconsistent with the allegations of its answer, and not therein admitted. The appeal in this case grows out of the invocation of the doctrine of estoppel by former adjudication, mentioned in the last part of the answer. The introduction of the record of a former suit, entitled "Ella F. Willoughby against the North Eastern Railroad Company," is the issue of law to be passed upon. If the introduction of this record was proper, then, practically, all the matter of law will have been settled; for exceptions 1, 3, 4, 7, and 8 refer to this matter, while exception 2 is based upon the claim that counsel for plaintiffs should have been allowed to argue to the jury upon the issues decided by the circuit court to have been already adjudicated, in opposition of the ruling of the circuit judge included in the above exceptions. Exceptions 6, 9, 10, 12, 13, and 7 do not allege the violation of any specific principle of law, but allege only, generally, that there was error in the charge of his honor.

These last exceptions will be disposed of first. Inasmuch as they do not allege specifically any error, they do not come under the requirement of the rule for the assignment of errors. They are too general and indefinite. State v. Dickerson, 40 S.C. 360; Thackston v. Railway Co., 40 S.C. 88, 18 S.E. 177; Davis v. Elmore, 40 S.C. 537, 19 S.E. 204; Sims v. Jones, 43 S.C. 99, 20 S.E.

905; Metz v. Bank, 45 S.C. 244, 23 S.E. 13; Avery v. Wilson, 47 S.C. 91, 25 S.E. 286; and the recent case of Weatherby v. Covengton, 51 S.C. 55, 28 S.E. 1. If, however, the assignments had been made according to the rule, the record shows that the charge of the judge was manifestly correct. The charge of a judge must be taken and considered as a whole. The charge of his honor, read correctly, does not support this claim of error. The right to alter and take up the rails, which in a former action had been adjudicated in behalf of defendant, carried with it the necessary right to come out. Having the right to enter for a lawful purpose, it was implied necessarily, as original and incidental to the power given, that egress should be permitted. This charge of the judge, relating to the right of the defendant to come out with the engine, it was claimed, had already been adjudicated in its behalf.

Exception 5 alleges error in charging on the facts. It will be observed that the specification is that his honor erred, in violation of the constitutional provision, in saying: "We find the railroad company in possession of the rails." It must be always remembered, in the construction of a charge to a jury that the charge is to be taken as a whole. Now, if this language is considered in its proper place in the charge as printed in the "case," a view differing from the conclusion of the appellants will be taken. His honor, in a general way, was undertaking to say what had taken place between the plaintiffs and defendant heretofore, giving the history of the litigation that had passed, when he said: "The judgment which was rendered to that effect, in the view which I have taken of it, is binding on the parties to the action, and must be respected by you and me in our consideration of this case. We find the railroad in possession of their rails under the...