North River Insurance v. Southern Ry. Co.

76 S.E. 1095, 93 S.C. 358, 1913 S.C. LEXIS 29

Opinion

The opinion of the Court was delivered by

Mr. Justice Fraser.

This is an action by the insurance company to recover of the railroad company for property burned on the right of way of the defendant, caused by the negligence of a servant of the defendant. The case was tried by his Honor, Judge Gage, who directed a verdict in favor of the defendant.

There are five exceptions by the appellant and this Court is asked to sustain the judgment on five additional grounds.

(Let the exceptions and the additional grounds be reported.)

It will not be necessary to consider either separately as a better statement of the case can be made that will cover them all.

1 There was testimony that the defendant placed its work train on a sidetrack at Union, S. C., near some buildings and a lumber yard. That the train consisted oí cars in which employees slept at night and a cook car for the preparation of meals for the employees. That between eleven and twelve o’clock on the night of the 33d of October, 1904, fire was discovered in one of the sleeeping cars. The suit was commenced on the 33d October, 1910. It appears that the fire that commenced on the 33d October, 1904, was communicated to the property over which the plaintiff had a policy of insurance. How long it took to reach insured property does not appear. 'It is the policy of the law to hear causes fully on their merits and not to dismiss them unheard and he who claims that a cause can not be heard, must show the facts upon which he would send a claimant out of Court unheard.

It is claimed that Ayers, in whose car the fire was discovered, was not the agent of the defendant for whose acts the defendant is liable. There was some testimony from which it might have been inferred that Ayers was a subforeman, and, inasmuch as Pope, the foreman, was absent, that Ayers was acting foreman and in the car provided for one in charge of the train in order that he might be easily accessible, in case of emergency.

There was conflict of testimony as to whether Ayers was in charge of the train and that conflict ought to have been determined by a jury. As to the cause of the fire: the evidence was circumstantial, but not conjectural in the sense that it was a mere guess. A lamp with a narrow base made to sit in a bracket was out of its socket and standing upon a table. A man who1 acts in a rather peculiar way is found in the car in which the fire originated. There is a strong odor of kerosene oil and the bed is on fire, when first discovered. The origin of the fire is more than a, conjecture. The man’s condition was a legitimate subject of inquiry, and if he were not in a normal condition, the jury might well have arrived at as good a conclusion as circumstantial evidence will allow. Now, if the jury thought that this man was the agent of the company, acting foreman, they might have found for the plaintiff. All these matters were matters for the jury and the direction, of a verdict was error.

2 The defendant seeks to sustain the direction of the verdict on the ground that certain evidence introduced by the plaintiff was incompetent. Even if it were incompetent, it could not sustain the direction of the verdict, but only give a right to a new trial in case the defendant had lost.

The judgment of this Court is that the judgment of the Circuit Court be reversed, and the case remanded for a new trial.

Mr. Justice Hydrick disqualified.