Towill v. Southern Railway Co. , 131 S.C. 425 ( 1925 )

April 10, 1925. The opinion of the Court was rendered by "This action was begun January 14, 1922, for $100,000 damages for the alleged wrongful death of the plaintiff's intestate, John Bell Towill, at Batesburg, S.C. April 8, 1921. It is alleged that he was fatally injured by a train of the defendant Southern Railway Company, in charge of the defendant James Harling, as conductor, when he was attempting to board it as a passenger; and that the injury was caused by the joint and concurrent negligent, reckless, wanton, and willful acts of the defendants. The action is brought for the benefit of the widow and four children of the decedent.

"The case was tried by Special Judge C.J. Ramage and a jury; and November 24, 1923, a verdict for $7,000 was rendered against the defendants. The appeal of the defendants from the judgment is on the sole ground that the trial Judge erred in refusing the motion of the defendants for a directed verdict.

"The issue of punitive damages was, on motion of the defendants, withdrawn from the jury.

"The defendants admitted, at the beginning of the trial, that before the arrival of the train, on the evening of the injury, John Bell Towill purchased a ticket from the agent at Batesburg for the station of Johnston, and the ticket was in evidence.

"The plaintiff also in due time gave notice of intention to appeal to the Supreme Court, and her exceptions appear immediately after those of the defendants."

The plaintiff's exceptions, four in number, must be overruled, as no motion was made before the Circuit Court for a new trial, and plaintiff cannot appeal from a judgment in her own favor.

There is nothing in this case that takes it out of the general rule. No doubt, if a motion had been made in the Circuit Court for a new trial, that motion would not have been opposed by the defendants.

The sole exception raised by the defendants is that it was error not to grant their motion for a directed verdict. We have examined carefully the pertinent testimony as applicable to the specifications of negligence, and it would serve no useful purpose to point out in detail such testimony, as it would have been improper for his Honor to have directed a verdict for the defendants as asked for by them. While it was a very close case, there was sufficient evidence to carry the case to the jury, and a directed verdict would have been improper.

His Honor committed no error as complained of.

All exceptions are overruled and judgment affirmed.

MESSRS. JUSTICES FRASER and MARION concur.

MR. CHIEF JUSTICE GARY and MR. JUSTICE COTHRAN not participating.