Pennington v. Atlanta &c. Railway Co. , 35 S.C. 439 ( 1892 )

The opinion of the court was delivered by

Mr. Justice McGowan.

This was an action against the defendant company for injury to plaintiff’s horse. The plaintiff states the facts as follows: He was driving his two-horse team towards the crossing on Magnolia street in Spartanburg. He saw a train approaching and stopped his team until the cars passed in front of him, and he waited until the train was out ef sight. There was no flagman at the crossing, and he started to cross the track, but the train ran back, and in the effort to get the team off the track, he very suddenly checked the horses. They reared and were greatly frightened. He worked on until he took out his horses to feed, when he discovered that something was the matter with one of them. He kept the horse about three weeks, endeavoring to cure him, when he finally sold him for five .dollars. The defendant corporation answered, admitting that it was a corporation under the laws of the State, but denying that at the time mentioned in the complaint it was a common carrier of goods and passengers, or that it was operating or controlling any railway, cars, locomotives, or trains in the State; that it has no knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraphs 2 and 3 of the complaint; but denied positively the allegation of paragraph 4 of the complaint.

Upon the close of the testimony, the defendant’s attorney moved for a non-suit, which was granted upon the ground that there was no proof that, at the time of the alleged injury, the railroad was operated by the company which was sued, the Atlanta and Charlotte Airline Railway Company, but by another company, viz., the Richmond and Danville Railroad Company.

The plaintiff appealed upon the following grounds:

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YIT. In not holding that there was evidence enough to go to the jury, tending to show that the .injury complained of was caused by the negligence of the defendant company, their agents, servants, employees, and lessees, &c.

1 From the view the court takes, it will not be necessary to consider any of the grounds of appeal except the last. The plaintiff sued the Atlanta and Charlotte Airline Railway Company for an injury alleged to have been done to one of his horses at a crossing in Spartanburg, by the defendant, through its servants, agents, and employees, rushing one of its freight cars backwards with great force and rapidity across the street, &c. The defendant company answered, denying the allegation and also denying that, at the time indicated, it was a common carrier for goods and passengers, or that it was operating or controlling any railroad, cars, locomotives, or trains in the State. The plaintiff offered evidence tending to show that the defendant corporation built and owned the railroad; but it was not shown that, at the time of the alleged injury, the defendant corporation was operating, or that the injury complained of, was, as alleged, “caused by the negligence of the defendant.” Considering the allegations of the complaint and the proof made, we cannot say that the judge erred in granting the non-suit.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.