33 S.C. 198 | S.C. | 1890
The opinion of the court was delivered by
W. D. Fell was killed while running a train as engineer on the railroad track of defendant. There was an issue made in the pleadings as to whether the said Fell was in the employment of the defendant, or of Taylor & Elmer, a firm engaged in laying the track of said road at the time of the accident. But this question, from the view which we take of the case, is not material and need not be further referred to.
The action below was brought by the plaintiff as administratrix of W. D. Fell, to recover damages under the .act in such case made and provided. A verdict was rendered for the plaintiff for $2,500. The defendant has appealed upon' twenty-three exceptions. But we have not found it necessary to consider any of these except the first, which is that his honor erred in refusing a motion for a non-suit made by the defendant at the close of the plaintiff’s testimony. This meets us at the threshold, and as, after a thorough examination, we have reached the conclusion that this motion should have been granted, the questions raised in the other exceptions are not properly before us, as the case, should have ended, in our opinion, before they were reached below.
The accident occurred at a certain point on the track upon which certain cars had been left standing, or were found stand
There were no other specifications of negligence in the complaint, except as contained in the above paragraphs, numbered in the complaint 4 and 5, and it was therefore to these specifications
We think this ease is fully covered by the rule often laid down by this court in reference to non-suits, to wit, that where there is an entire absence of evidence as to all or any material fact or facts in the case necessary to be proved in order for the plaintiff to recover, a non-suit should be ordered. The material facts here were, 1st, a defective switch at the junction of the siding with the main track; 2nd, that certain cars from that siding escaped to the main track; and 3d, that the collision which caused the injury took place with these escaped ears. We say these were the material facts, because these were the facts, and the only facts, alleged in the complaint as the ground of the plaintiff’s action. There was not only an entire absence as to these facts in the plaintiff’s testimony, but it was apparent that the accident occurred in the collision with two cars which had been detached on Saturday night previous from a train which the deceased had
It is the judgment of this court, that the judgment of the Circuit Court be reversed, and that a non-suit should be ordered.