34 S.C. 444 | S.C. | 1891
The opinion of the court was delivered by
This was an action to recover damages for injuries sustained by the minor, William S. Barber, through the alleged negligence of the defendant company. In the complaint the negligence complained of is stated as follows: that at a station on the railroad, called Bascomville, “the said William S. Barber was crossing the track of the railroad, well knowing that the locomotive and cars thereof, then about due, would stop to discharge passengers at the said station; but the defendant carelessly and recklessly caused its locomotive and cars to pass rapidly over the track at said station and negligently omitted to slow up, or give a signal by bell or whistle while so approaching, though then crossing a public highway, by reason whereof the said William S. Barber was unaware of the approach, and by reason of the said negligence, and without any fault or negligence of the said William S. Barber, the locomotive struck him and threw him with great violence to the ground,” whereby he sustained the serious injuries for which damages are claimed.
The plaintiff introduced testimony tending to show that the place at which the disaster occurred was not a regular, but a flag, station, where the trains did not usually stop except upon signal, unless they had passengers to discharge at that point; that on the day when the accident occurred, there was a passenger on the east bound train to bo put off at Bascomville, which was known to William S. Barber; that young Barber, a youth of fifteen years of age, had gone to the station that morning, driving a team of mules, which he left in the open space between the public road to Rocky Mount and the railroad track, where persons visiting the station were accustomed to leave their teams, and had gone into the back part of the store of Hairier & Hoivze, in which the post-office was kept, for the purpose of warming his feet; that the railroad track runs immediately in front of said store, within about three feet of the piazza or platform of the store; that while at the fire young Barber heard the train approaching, and fearing that his mules tvould become frightened, started, with a companion, on a run, intending, as he said, to jump from the platform across the track&emdash;the road being narrow
The plaintiff also introduced testimony tending to show that the engineer in charge of the train failed to give the signals required by section 1483, when approacing the place where a railroad track crosses “any public highway or street or travelled place,” the whistle not having been blown until the engine was abreast of Cousar’s store, about 28 steps distant from the platform above mentioned. There was also testimony tending to show that persons were in the habit of stopping and hitchinotheir teams in the open space in front of the stores of Hafner & Howze and Cousar, between the railroad track and the public road leading to Rocky Mount, and crossing the railroad track to reach those stores, in one of which the post office was kept; but there was no evidence that the defendant company either knew of or acquiesced in. this habit of crossing its track at that place. The plaintiff also offered testimony, without objection, tending to show that since the accident occurred, the defendant company had cut off three feet from the platforms both of Hafner & Howze and of Cousar,' making the distance now between the edges of the platforms and the railroad track six feet instead of three feet; but it also appeared from the testimony of the same witness that the defendant company owned only the road-bed at that point, and had nothing to do with erecting or maintaining those platforms within three feet of their track, and had to obtain permission from the owners to cut them off as above stated.
or travelled place. Neely v. Railroad Company, 33 S. C., 136; Hale v. Columbia, &c., R. R. Co., ante, 300. But it is contended that while the disaster did not occur at a public highway or street, yet it did occur at a “travelled place,” and exception is taken to the construction placed .upon those words by the Circuit Judge, that it must be a place where the public are authorized to travel, and that although persons were accustomed to cross the track for the purpose of reaching the stores and post-office, this would not constitute “a travelled place” in the sense of those terms as used in the statute, unless it was shown that the railroad company knew of and acquiesced in this use of its track. We do not think there was any error in the view taken by the Circuit Judge, unless, indeed, he went too far in favor of the plaintiff. It seems to us that the object of the statute was to protect persons in crossing railroad tracks at points where they had a right to do so, and not at points where they had no legal right to cross.' We are not prepared, therefore, to admit that the mere fact that persons were in the habit of crossing a railroad track, with the knowledge of, and without objection from, the company, would constitute such a travelled place as is contemplated by the statute, unless the public had m some way acquired a legal right to cross at such point. See Hale v. Columbia, &c., R. R. Co., referred to above.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.