Brown v. Spartanburg, Union & Columbia R. R.

The opinion of the Court was delivered by

Mr. Chile Justice McIvlr.

This was an action brought by the plaintiff against the defendant company to recover damages done to his wagon and team by the alleged negligence of the said railroad company. The only negligence alleged in the complaint was in failing to keep in repair abridge across a ditch on the side of the defendant’s track, at a point where it intersected a “country road,” to enable persons traveling said road to cross the track of said railroad company; for the complaint, after allegations of negligence in keeping said bridge in proper repair, proceeds as follows: “That on said day, at said point, while plaintiff’s said team of mules and wagon, with its load, were traveling said road, the bridge, by reason of its said rotten and unsafe condition, fell and caused the said team to be held upon the track of the defendant, in which position, before they could be extricated, they were struck by a passing engine running upon said track,” and the injuries complained of were sustained. But the complaint fails to allege any negligence in running said engine, or any negligence on the part of the engineer in failing to stop his engine in time to avoid the collision with the team on the track. The case came on for trial before his Honor, Judge Klugh, and at the close of the testimony in behalf of the plaintiff, counsel for defendant moved for a nonsuit upon the ground that “the defendant alleged in the complaint and the negligence proven is that the bridge fell in, and further proof that the negligence which they have alleged and shown according to their own witness, Mr. Rowland Quinn, did not cause any injury to the mules and wagon;” the Circuit Judge ruled as follows: “I think the testimony fails to show the infliction of any injury as the result of the negligence alleged in the complaint, and the motion for a nonsuit will be allowed.” A formal order was passed granting the motion, and judgment of nonsuit having been entered, the plaintiff appealed upon the following grounds: “That his Honor erred in holding that the testimony failed to show that the injury inflicted upon the plaintiff was the result of the negligence alleged in the complaint and. in granting the nonsuit; inasmuch as the testimony established these facts, that the bridge maintained by defendant on each side and across its track fell because of its rotten and unsafe condition, carried plaintiff’s wagon and team down with it, and held them upon defendant’s track until they were struck and injured by defendant’s engine, which facts were alleged in the complaint as constituting the negligence which was plaintiff’s cause of action.”

The testimony is set out in the “Case,” and it not only fails to contain anything tending to show that any injury whatever was done to the wagon or mules by reason of the negligence alleged in the complaint; but on the contrary, the undisputed testimony of the plaintiff’s own witness, Rowland Quinn, who was driving the team at the time the disaster occurred, was that no injury was done either to the wagon or the mules by the falling of the bridge, but the injury was inflicted by the passing engine, in which, as we have seen, no negligence was alleged. It seems to us that the ruling of the Circuit Judge is fully sustained by. our own cases of Glenn v. Railroad Company, 21 S. C., 466, where the negligence alleged was in failing to furnish an engine running at night with a headlight, and the Court said that while there was quite sufficient evidence to show negligence in that respect, yet there being no evidence tending to show that the injury complained of resulted from such negligence, there was no error in granting the nonsuit. To the same effect, see Fell v. Railroad Company, 33 S. C., 198, and Jenkins v. McCarthy, 45 S. C., 278, where Mr. Justice Pope, in delivering the opinion of the Court, well said: “It would be hazardous to litigants when brought into Court to answer for a specified negligence, to open wide the door to proof of any kind of negligence.”

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