
    14442
    BALDWIN v. ATLANTIC COAST LINE RAILROAD COMPANY
    (190 S. E., 465)
    January, 1936.
    
      Messrs. Douglas McKay and W. M. Reynolds, for appellant
    
      
      Messrs. Dinkins & Stukes and Epps & Epps, for respondent,
    March 2, 1937.
   The opinion of the Court was delivered by

Mr. Justice Fisi-iburne.

This cause was brought under the Federal Employers’ Biability Act (45 U. S. C. A., § 41 et seq.) for the recovery of damages for the suffering and death of Vernon Baldwin, a locomotive engineer, who at the time of his death was operating a passenger train for the defendant in interstate commerce, from Fayetteville, N. C., to Sumter, S. C., via Bennettsville, S. C. The engineer met his death when the train on which he was working ran into an open switch and was derailed, one mile and a half north of Bennettsville on December 2, 1933. The trial in the Circuit Court resulted in a verdict for the plaintiff. Appeal was taken to this Court upon exceptions assigning error to the trial Judge because, of his refusal to direct a verdict in favor of the defendant.

An action was also brought against the defendant for the recovery of damages for the death of A. A. Wells, who was the fireman on this train, and who was killed in the same wreck. Rena Johnston, as Administratrix of the Estate of A. A. Wells, deceased, v. Atlantic Coast Line Railroad Company (S. C.), 183 S. C., 126, 190 S. E., 459.

Both cases involve the same testimony, present the same legal issues, and were argued together by agreement in the Supreme Court. The case at bar is controlled by the decision just filed in Rena Johnston, as Administratrix of the Estate of A. A. Wells, deceased, v. Atlantic Coast Line Railroad Company.

Upon the authority of that case, the judgment of the Circuit Court in this case is reversed, and the cause remanded for entry of judgment in favor of the defendant under Rule 27.

Mr. Chief Justice Stabter and Mr. Justice Boni-iam concur.

Mr. Justice Carter dissents.

Mr. Justice Baker did not participate.

Mr. Justice Carter

(dissenting) : I am unable to agree with the conclusion reached by the writer of the leading opinion in this case for the reasons stated in my dissenting opinion in Rena Johnston, as Administratrix of the Estate of A. A. Wells, Deceased, Respondent, v. Atlantic Coast Line Railroad Company, Appellant (S. C.), 190 S. E., 459, and, therefore, most respectfully dissent.  