52 S.C. 166 | S.C. | 1898
The opinion of the Court was delivered by
acting Associate Justice in place of Justice Jones, disqualified. 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, 1887. 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
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, whilst the said F. 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 employes thereunto specially ordered and directed, caused a heavy engine, under a full head of steam, to be run with great force on said railway towards said F. F. Willoughby, and almost up to her person, threatening to crush her; the said defendant having no right of way 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 employees, acting within the scope of their employment, 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 of 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 $10,000. Wherefore, plaintiffs demand judgment against the defendant corporation for the sum of $25,000, aud the costs, expenses, and disbursements of this action.” (One cause of action alleging $5,000 damages having been eliminated.)
■The answer alleges that on the 10th, 11th, and 12th days of August, 1887, the defendant, by its agents and employees, 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 arid to take away the rails; that 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. E. Willoughby to take up and remove the rails, justified under the terms of said contract; and that the defendant did nothing except such acts as were necessary 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 thereon, and entered under its contract and proceeded carefully in the lawful exercise of its right of way; and that the officers of this corporation, controlling the movements of its train, 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 said complaint, and remove therefrom the rails of defendant, which are mentioned in the contract, a copy
The appeal in this case grows out of the invocation of the principle 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 matters 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 plaintiff should have been allowed to argue to the jury upon the issues decided by the Circuit Court to have been already adjudicated, in opposition to 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.
The judgment of this Court is, that the judgment of the Circuit Court be, and the same is hereby, affirmed.