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BAILES v. SOUTHERN RAILWAY CO.

July 9, 1957

EULA MAE BAILES, RESPONDENT,
v.
THE SOUTHERN RAILWAY COMPANY, APPELLANT.



The opinion of the court was delivered by: Taylor, Justice.

July 9, 1957.

The action from which this appeal stems was brought in the Court of Common Pleas for York County for damages arising out of the alleged wrongful death of Forrest Leonard Moss, whose mangled body was found strewn along appellant's right-of-way within the yard limits of Sharon, South Carolina, early on the morning of September 12, 1948.

The complaint is upon the theory that the deceased was struck and killed by appellant's railroad train at approximately 8:30 p. m., September 11th, when it was going from Blacksburg, South Carolina, to Sharon, South Carolina, "while the said Forrest Leonard Moss was either walking along said track or right-of-way, or was endeavoring to cross the said track or right-of-way or was otherwise upon said track or right-of-way * * *" (Emphasis ours.) Other portions of the complaint are to effect that the deceased was struck and killed in a grossly negligent, willful, and wanton manner while helpless upon appellant's track. The specifications of negligence being:

"(a) That the engineer, fireman or other operator and/or employee of Defendant Railway Corporation, for whose acts Defendant Corporation is liable, failed to keep a proper lookout for persons, property or otherwise on said tracks or right-of-way.

"(b) That the aforesaid agents of Defendant Corporation failed to give any warning signals or otherwise.

"(c) That the aforesaid agents of Defendant Corporation failed to slacken the speed of Defendant's locomotive when they saw, or could have seen, deceased in clear view on said tracks or right-of-way.

"(d) That the aforesaid agents of Defendant Corporation failed to apply brakes within a safe distance after observing deceased in clear view on this straight track.

"(e) That the aforesaid agents of Defendant Corporation failed to exercise any humanitarian duty toward deceased, after having admittedly seen deceased on this track or right-of-way.

"(f) That the aforesaid agents of Defendant Corporation failed to stop said train and render aid, comfort or otherwise to assist deceased, all in violation of the Statute Law of this State."

Appellant set up by way of answer a general denial.

The testimony to the effect that the deceased was sober and apparently normal a short while before the passing of the train, the condition and location of his body when found, and the description of the general area and other such testimony is uncontradicted. In addition, the one witness presented by appellant substantially admitted the pertinent parts of this testimony. It was established by several witnesses that plaintiff's intestate was apparently struck inside the yard limits of the Town of Sharon; that this was a populated area, with a sawmill nearby, a switch and siding from which pulpwood, granite, and other things were loaded upon appellant's cars. A number of homes were in the immediate vicinity, and there was a footpath upon the right-of-way. The weather was clear, the track was straight and nothing to obstruct the view. The scene was near the yard limit and a crossing, and there is contradictory evidence as to whether or not the required signals were given by the engineer who also testified that he saw something upon the track but made no effort to slow down or stop although he saw it in time but did not do so because he believed it to be one of several brown fertilizer bags which he had previously observed upon the right of way. Upon cross-examination, it was brought out that respondent's intestate was killed approximately where the object was seen upon the tracks; a portion of the testimony being:

"Q. You described this white object you saw in the tracks. Where was it with reference to this sawmill you mentioned in your testimony previously? A. Well, it was between this what I took to be a paper bag — was between where I blowed the station blow and where I blowed the answer to the conductor's signal to stop at the station.

"Q. Not with reference to the blows, but with reference to the mill. Where was it with reference to the mill? A. The mill was over on the left-hand side, and I could not say just how near that bag was to ...


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