121 S.E. 600 | S.C. | 1922
December 29, 1922. The opinion of the Court was delivered by "The appellant, B.B. Williams, in his complaint in this action alleges that his warehouse situate on or near the railroad siding of the Seaboard at Creco, Orangeburg County, together with the contents thereof, was destroyed by fire communicated thereto by the Seaboard Air Line Railway then being operated by the Director General of Railroads. The respondent by his answer denies that the fire was communicated by the railroad to such property, and, further, that, even if such property was destroyed by fire so communicated, yet the appellant herein could not recover damages therefor, because he had executed and delivered to the Seaboard a contract of indemnification which covered and extended to the building and property destroyed. The issues being duly framed, the case came to be tried before Hon. Jas. E. Peurifoy, trial Judge, with a jury, at the March, 1920, term of the Common Pleas for Orangeburg County. At the conclusion of the testimony the respondent submitted a motion to direct a verdict in favor of the defendant. After hearing argument the presiding Judge directed a verdict in favor of the defendant; and within due *106 season the plaintiff gave notice of intention to appeal from the judgment entered thereon to the Supreme Court."
The exceptions, five in number, impute error on the part of his Honor in directing a verdict for the defendant, and in not refusing the motion for a directed verdict, and error in the construction of the contract between the parties. It seems from the testimony that the appellant used the 90 feet provided for in the contract and 80 feet additional north of the 90 feet. These exceptions are overruled; the purpose of the contract was to exempt the railroad from liability as to any increased hazard of fire caused by any property placed within the fire zone by plaintiff as a consequence of his use of this side track. The evidence shows that the warehouse and contents were such property; they were within the letter and spirit of the contract.
The plaintiff in making the contract had the benefits and should also bear the burden provided for in the contract. His Honor placed the right construction on the contract under the cases of Mayfield v. Ry.,
Exceptions are made to the order of Judge Peurifoy settling the case for appeal. These exceptions are overruled, under the authorities of Southern Pine Lumber Co.v. Martin,
All exceptions are overruled, and judgment affirmed.
MESSRS. JUSTICES FRASER, COTHRAN and MARION concur.
MR. CHIEF JUSTICE GARY did not participate. *107
