41 S.E. 810 | S.C. | 1902
April 18, 1902. The opinion of the Court was delivered by *21 The plaintiff, who is the administratrix of her deceased husband, John H. Haltiwanger, brought this action for damages against the Columbia, Newberry and Laurens Railroad Company, to recover damages occasioned by the killing of her said intestate by the alleged negligence of the defendant company. The undisputed facts are that said intestate, while walking along the track of defendant's railroad, at a point which was neither a railroad crossing nor a "traveled place," was struck by an engine drawing a passenger train of defendant company and instantly killed. At the close of the testimony on behalf of the plaintiff a motion for a nonsuit was made, based upon two grounds: "1st. That the testimony had tended to prove only that the deceased had been killed by defendant's train while he was walking along defendant's track at a place that was neither a `public crossing' nor `traveled place.' 2d. That there was no evidence tending to show that he was seen by the engineer running the train by which he was killed, or that he was in a position of apparent danger, consequently there was no testimony tending to show negligence on the part of the defendant company or its servants." This motion was refused and the trial proceeded, and at the close of the testimony and argument of counsel the Circuit Judge charged the jury as set forth in the "Case." The jury rendered a verdict for the plaintiff, and a motion for a new trial having been made and refused, judgment was entered, and from such judgment defendant appeals upon the several exceptions set out in the record. For a proper understanding of the points made by this appeal the Reporter will set out in his report of the case the charge of the Circuit Judge and the exceptions.
It will be observed that the exceptions raise three general questions: 1st. Whether there was error in refusing the motion for a nonsuit (exceptions 1, 2 and 3). 2d. Whether there was error in the charge of the Circuit Judge (exceptions 4, 5, 6, 7 and 8). 3d. Whether there was error in refusing the motion for a new trial (exception 9). We will *22 proceed to consider these three general questions in their order.
First, as to the motion for a nonsuit. It will be noticed that the grounds upon which the motion was based were reduced to writing, and as set out above, make only the questions whether there was any testimony tending to show that the place where the intestate was killed was neither a public crossing nor a "traveled place;" and whether there was any testimony tending to show that the deceased was seen by the engineer running the train by which he was killed, or that he was in a position of apparent danger, and, consequently, whether there was any testimony tending to show negligence on the part of the defendant; but they do not make what we regard as the controlling question in this case, to wit: whether there was any testimony tending to show such negligence as would make the defendant liable for killing a trespasser on its track, inasmuch as the undisputed fact was that the intestate was killed while walking along the defendant's track, where there was no crossing and where it was not a "traveled place." Nor is such question made by either of the three exceptions (1, 2 and 3) imputing error in refusing the motion for a nonsuit. On the contrary, the grounds of the motion for a nonsuit, as reduced to writing, as required by the 18th Rule of the Circuit Court, as well as the exceptions just referred to, raise but two questions: 1st. Whether there was any testimony tending to show that the place where the intestate was killed, was either a public crossing or a "traveled place." 2d. Whether there was any testimony tending to show that the deceased "was seen by the engineer running the train by which he was killed, or that he was in a position of danger."
As to the first of these questions, while it is quite true that there was no testimony tending to show that the place where the intestate was killed, was either a public crossing or a "traveled place," yet that alone would not justify a nonsuit, for that would be to assume that a railroad company would not be held liable for injuring or killing *23 a person at any point on its track, except at a public crossing or on a "traveled place" — a proposition which, certainly, cannot be sustained; for, as we shall presently see, a railroad company may be held liable for killing or injuring even a bald trespasser, at any point on its track under certain circumstances, which will hereinafter be adverted to.
As to the second of these questions, an examination of the "Case" shows that there was some testimony tending to show that the engineer did see the deceased on the track, and as a person walking on a railroad track in front of an approaching train is always "in a position of apparent danger," we think there was, at least, some evidence tending to show that the engineer running the train saw that the deceased was in a position of apparent danger; and, therefore, we are of opinion that there was no error in refusing the motion for a nonsuit upon either of the grounds upon which such motion was based. These exceptions are, therefore, overruled.
The second general exception — whether there was error in the charge of the Circuit Judge, as imputed thereto by exceptions 4, 5, 6, 7 and 8 — will next be considered. For a proper appreciation of the points made by these exceptions it will be necessary to recall some of the undisputed facts of this case. It is not, and indeed cannot be, pretended, that the place where the plaintiff's intestate was struck and killed was either a public crossing or a "traveled place," or that either the public or the intestate has ever acquired the legal right to use the track of the defendant company even as a footpath, at the point where the disaster occurred. The most that could be or was said, was that persons were in the habit of using the track at that point as a footpath, and that defendant company had taken no steps to manifest its objection to such use of its track. But that is not and cannot be claimed to have been sufficient to confer upon any person the legal right to use the track, at pleasure, as a footpath. It only amounts to this, that while the defendant company was legally entitled to the exclusive use of its track for the purpose of transporting *24
the mail, passengers and freight, it did not churlishly forbid persons from walking along its track at such times as would not interfere with the running of its trains. In this case there was no testimony tending to show that either the public or the intestate had ever acquired the legal right to use the defendant's track at the point where the disaster occurred; indeed, there is no allegation to that effect in the complaint, and the jury were so instructed by the Circuit Judge. So that the case presented by the pleadings and evidence is one in which the intestate was killed at a point on defendant's track where he had no legal right to be, though he and others in that neighborhood had been in the habit of using the track at that point as a footpath, and had never been forbidden to do so by the defendant company; and the first inquiry is what, if any, duty did defendant company owe to the intestate under these circumstances, and what are the rules of law applicable to such a case? If one voluntarily goes upon the track of a railroad company, which is in daily, and sometimes hourly, use for the transportation of its trains, without legal authority, he becomes a trespasser, and the inquiry is narrowed down to the question, what duty, if any, does a railroad company owe to a trespasser on its track? This matter has been considered in the case ofSmalley v. Railroad Company,
The ninth exception must be overruled, as it has been held in a number of cases that in an appeal from a motion either granting or refusing a new trial, this Court has no jurisdiction to pass upon the weight or the effect of the evidence.
The judgment of this Court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for a new trial.
On petition for rehearing, the following order was filed April 18, 1902:
On examination of this petition, it fails to satisfy us that any material facts or principle of law have either been overlooked or disregarded. Hence there is no ground for a rehearing. *27
It is, therefore, ordered, that the petition be dismissed and the stay of remittitur heretofore granted be revoked.