39 S.E. 710 | S.C. | 1901
September 7, 1901. The opinion of the Court was delivered by This is an appeal from an order of nonsuit in an action for damages for wrongful act causing the death of plaintiff's intestate. The "Case" states the following: "The testimony on the part of plaintiff showed that the deceased was struck and killed by a passing locomotive and train of cars on defendant's railroad, operated by the lessees of defendant, at a public crossing in Bamberg County, to wit: the crossing of the Barnwell and Bamberg public highway, one of the main thoroughfares of this county, on the night of September 20th, 1899, between the hours of 10 and 11 o'clock. It appeared from the testimony, that the deceased had been spending the evening at a house in the neighborhood with a number of young negroes, and on departing to go home had gone with his companions along the said highway for some distance up to and upon the said crossing, where the company separated, some going on and leaving the deceased sitting or standing on the crossing, with the intention of going no further, but of returning along the said highway to his own home. That, as appears from the said testimony, the said locomotive and train, i. e., the agents and employees of defendant's lessees in the operation and control thereof, neither blew the whistle nor rang the bell, nor gave any signal for the said crossing or otherwise, until after crossing had been passed and the deceased struck, when the train was caused to stop and back to the crossing for the purpose of taking on the deceased, who died in a few hours thereafter from injuries caused by the collision. There was no testimony as to what deceased was doing at the time of the collision, which happened before his departing companions got more than a half to three-quarters of a mile away from the crossing. The foregoing is so much of the substance of the testimony as relates to the issues involved in the motion for nonsuit."
The Circuit Court considered the action as based wholly upon sections 1685 and 1692, Revised Statutes, and according *497 to his construction of the statute it was not designed to cover the case of an injury a person on the crossing who had no intention to cross, and since the testimony showed that the deceased did not intend to cross, the nonsuit was granted.
We think there was error, for two reasons: (1) that the statute covers the case stated, and (2) independent of the statute, the case should have been submitted to the jury as an action for common law negligence. The statute provides, sec. 1692: "If a person is injured in his person or property by collision with the engines or cars of a railroad corporation at a crossing, and it appears that the corporation neglected to give the signals required by this article, and that such neglect contributed to the injury, the corporation shall be liable for all damages caused by the collision, or to a fine, recoverable by indictment, unless it is shown that, in addition to a mere want of ordinary care, the person injured, or the person having charge of his person or property, was at the time of the collision, guilty of gross or wilful negligence, or was acting in violation of the law, and that such gross or wilful negligence or unlawful act contributed to the injury." Sec. 1685 provides that "the bell shall be rung or the whistle sounded by the engineer or fireman at the distance of at least five hundred yards from the place where the railroad crosses any public highway or street or traveled place, and be kept ringing or whistling until the engine has crossed said highway or street or traveled place, c." The intention of the statute is to be first ascertained from its language. The statute in terms covers every injury to persons or property by collision with the engine or cars of a railroad companyat a crossing. There must be an actual collision — Kinard
v. R.R. Co.,
We do not regard the case of Neely v. R.R. Co.,
The case of Hale v. R.R. Co.,
But if we are in error in this view, still the nonsuit was improper, because the action is sustainable as for negligence at common law. The allegations of the complaint in reference to the negligence complained of is that defendant "carelessly, negligently and in reckless disregard of the safety of travelers along said highway, failing *500
to give the signal required by law on approaching a crossing, without sounding the whistle or ringing the bell, and as a consequence of said careless, negligent and reckless operation and management of said train in failing to give proper signals as aforesaid, and in general an utter failure to observe any proper caution and care for the safety of the deceased and others passing along said highway, collided, c." The common law requires the giving of such signals at a highway crossing as are reasonable in view of the situation and surroundings, to put individuals using the highway on their guard. Murray v. R.R. Co., 10 Rich., 232; Kaminitsky
v. R.R. Co.,
The judgment of the Circuit Court is reversed, and the case remanded for a new trial.
MR. CHIEF JUSTICE McIVER concurs in the result on thesecond ground. *501