From Casetext: Smarter Legal Research

Birt v. Southern Ry.

Supreme Court of South Carolina
Nov 11, 1910
87 S.C. 239 (S.C. 1910)

Opinion

7710

November 11, 1910.

Before GRUBER, J., Barnwell, October, 1909. Reversed.

Action by J.M. Birt against Southern Railway Co. Plaintiff appeals from order of nonsuit.

Messrs. J.A. Willis, H.F. Buist and H.H. Ninestein for appellant. Mr. Willis cites: Plaintiff had the right to have this case submitted to the jury on common law right of action: 81 S.C. 572; 16 S.C. 588; 2 Strob. 356. Plaintiff had the right to amend by changing the cause of action: 83 S.C. 557.

Messrs. Harley Best, contra, cite: Defendant was entitled to nonsuit on failure to prove negligence: 41 S.C. 86; 158 U.S. 285; 10 S.E. 352; 57 P. 938; 59 N.E. 211; 95 F. 305; 133 Fed. 1009; 142 Fed. 176.


November 11, 1910. The opinion of the Court was delivered by


When there is testimony tending to show damage to property caused by fire communicated by a railroad engine, it is error to grant nonsuit on the ground that there is no evidence of negligence; in such cases, a prima facie presumption of negligence arises which casts the burden on the railroad corporation to show that its engine was constructed, equipped, and managed with due care. Hutto v. Ry., 81 S.C. 567, 62 S.E. 835, and cases cited.

A complaint which alleges that such fire was negligently set out may be amended during trial, after the evidence has been taken, by striking out the allegation of negligence so as to make the action one under Section 2135 of the Code of 1902, which makes every railroad corporation liable for damage caused by fire communicated by its engine (except in the cases specified) without regard to the question of negligence. Brown v. Ry., 83 S.C. 557.

Reversed.


Summaries of

Birt v. Southern Ry.

Supreme Court of South Carolina
Nov 11, 1910
87 S.C. 239 (S.C. 1910)
Case details for

Birt v. Southern Ry.

Case Details

Full title:BIRT v. SOUTHERN RY

Court:Supreme Court of South Carolina

Date published: Nov 11, 1910

Citations

87 S.C. 239 (S.C. 1910)
69 S.E. 233

Citing Cases

Mellette v. Atlantic Coast Line R. Co.

Action by J.D. Mellette against the Atlantic Coast Line Railroad Company and others. From a judgment for…

Williams v. Atlantic Coast Lbr. Corp.

Admissibility oftestimony of similar crimes: 88 S.C. 239. Declarations ofagent since deceased admissible: 83…