39 S.E. 758 | S.C. | 1901
September 23, 1901. The opinion of the Court was delivered by This is an action for damages for personal injury resulting in the death of plaintiff's intestate, through defendant's alleged negligence in operating its train of cars at Anderson, S.C. and the appeal comes up from a judgment on verdict in favor of the plaintiff.
The first, second and third exceptions relate to the admissibility of certain testimony. Over the objection of defendant, witnesses were allowed to testify that the railroad track of the defendant company from the depot station to the Orr Cotton Mills, on which plaintiff's intestate was injured, was used by persons without objection on the part of the defendant. Appellant, in the first exception, alleges that this was error, because the track was not a traveled way where said intestate had a right to be. Conceding that the evidence was wholly insufficient to establish that the track at the place of the injury was a traveled place, where the public had a legal right to travel, the testimony was admissible for what it was worth on the issue raised in the pleadings, whether persons were accustomed to use the track as a walkway with the consent or acquiescence of the defendant, and for the purpose of showing the circumstances which called for the exercise of care on the part of the defendant.
The second exception was not pressed and need not be noticed.
The third exception assigns error in admitting in evidence an ordinance of the city of Anderson, making it unlawful for any moving engine or train of cars to cross any street of the city at a rate of speed faster than four miles an hour, and making it the duty of the persons in control to ring a bell for at least fifty yards immediately before reaching such crossing, when it appeared that the injury did not occur at a *559 crossing. There does not appear in the "Case" any basis for this exception. The ordinance was set out in the pleading, and when proof was being offered, defendant's counsel said, "we admit the ordinance as set out in the pleading." It does appear that a motion was attempted to be made to strike out the ordinance from the evidence after the refusal of the motion for nonsuit, and that it was agreed by counsel that this motion should be taken up after the close of the testimony; but we do not find that such motion was ever taken up or ever ruled upon by the Circuit Court.
The fourth exception alleges error in the refusal of the motion for nonsuit, which motion was based on the ground that the evidence showed that the plaintiff's intestate was a trespasser when injured, and there was no evidence of gross or wilful misconduct of the defendant in the management of its train. The general rule undoubtedly is that a railroad company owes no duty to a bald trespasser on its track except not to do him any wanton or wilful injury. Smalley, v. Southern Ry. Co.,
The fifth exception complains of error in failing and refusing to charge defendant's second request to charge, which is as follows: "If the jury find from the evidence that the said Susan V. Jones was injured by the train on the railroad track other than at a public crossing, or a crossing which the public was accustomed to use to cross the track, she was a mere trespasser, and the plaintiff would not be entitled to recover in this action, unless the jury further find from the evidence that the injury was the result of wanton and wilful misconduct of the defendant in *562 the running of its train at the time. Except at crossings, the railroad company has the right to the exclusive use of its track and is entitled to assume that it is clear. It is not bound to anticipate that persons will be upon it or to make provision for the safety of such persons." Responding to this request, the Court said: "Well, defendant has submitted an abstract proposition of law that is in one sense correct, because the right of way, the track of the railroad company, being the property of the railroad company and maintained for its use, it is the property of the railroad company, and it is not bound to anticipate that as a rule a person is to obstruct that track by getting upon that track, and the railroad company has a right to assume that its legal right will be respected by the people, and it is not its duty to anticipate that people will be upon that track." The defendant was not entitled to have the Court charge the request without qualification, for it assumed that the plaintiff was a trespasser, if the injury happened at other than a public crossing, and that, therefore, the defendant was not liable unless the injury was the result of defendant's wanton and wilful misconduct; whereas plaintiff's complaint and evidence in support thereof was directed to show that plaintiff was not such a trespasser, but rather a licensee, using the track with the knowledge and acquiescence of the defendant, and in a populous part of the city of Anderson, where people were accustomed to travel, which circumstance would call for greater care on the part of defendant than in the case of a bald trespasser. In view of what has been said, the sixth exception must also be overruled, since it complains that the Court erred in charging the jury that if they believed from the evidence that the deceased was at the time of the accident walking along the track of the defendant company at a place where the track had been in use by the public as a walkway with the knowledge and acquiescence of the railroad company, then the deceased was not upon the tracks as a trespasser but as a licensee.
The seventh exception complains that the Court erred in *563
charging the jury plaintiff's fourth request, as follows: "`A railroad company which runs a train of cars backward along its track on a dark night, through a populous part of the town, and where its said track has been for a long time used by the public with its knowledge and acquiescence as a walking place, is under a duty to use due care and take due precaution to prevent injuries to persons who may be on its said track, either by ringing the bell, or sounding the whistle, or displaying rear end lights, or giving due notice or warning in some other reasonable or proper manner of the approach of the said train.' It is objected that this charge was (1) a charge on the facts, in violation of the Constitution; and (2) that it undertook to instruct the jury what acts a railroad should do under the conditions, in order to exercise due care." It was disputed by the defendant company that the place of the accident was in a populous part of the city of Anderson, where its track had been used by the public with its knowledge and acquiescence. Therefore, to state such fact other than in a hypothetical way as a basis for declaring its legal effect, was an improper reference to the testimony, as it was likely to convey to the mind of the jury that the Court assumed as true what the defendant disputed. Norris v. Clinkscales,
The tenth and eleventh exceptions relate to the charge as to contributory negligence, and are as follows: "Tenth. Because the presiding Judge refused to charge the jury as requested in the defendant's request, numbered 6, that `even if the defendant was guilty of negligence *564 in the backing of its train, and such negligence was a proximate cause of the injury, if the jury also believe that the said Susan V. Jones showed a want of ordinary care in walking down the track that night, under all the circumstances, and such carelessness was a proximate cause of the injury, she was guilty of contributory negligence, and the plaintiff would not be entitled to recover;' and in qualifying this request by adding that: `If the deceased, Mrs. Jones, was guilty of negligence in acting, as you may find from the testimony that she acted, and if her conduct, her negligence, together with the negligence of the railroad company, contributed to her injury as the proximate cause, then the railroad company would not be responsible, unless the railroad company could have avoided injuring her notwithstanding her negligence' — the error being: (a) That he refused to charge defendant's request as presented, which was a correct proposition of law and applicable to this case. (b) That he thereby gave the jury the law upon contributory negligence incorrectly. (c) That he instructed the jury in effect that the plaintiff could recover against the defendant, if they should find that its want of due care was a proximate cause of the injury — even if plaintiff's intestate was guilty of contributory negligence." "Eleventh. Because the Circuit Judge erred in charging the jury, as requested in plaintiff's ninth request, as follows: `Contributory negligence is a matter of defense, and must be proved by defendant by a preponderance of the evidence; but unless the contributory negligence was the proximate cause of the accident, and if in spite of such contributory negligence, the accident could have been avoided by the use of ordinary care on the part of the defendant, then plaintiff is still entitled to recover.' This instruction being erroneous for the same reasons as are given in subdivisions b and c of the tenth exception."
The testimony being undisputed that Mrs. Jones, plaintiff's intestate, was walking down the railroad track at the time of the injury, the defendant was entitled to have the *565
sixth request to charge above mentioned in the tenth exception submitted to the jury as entirely correct. The remarks by the Court down to the clause, "unless the railroad company could have avoided injuring her notwithstanding her negligence," were not improper nor inconsistent with the request, but the addition of such qualification was erroneous and wholly inconsistent with the well settled principles governing contributory negligence. The same error was made in the charge excepted to in the eleventh exception above, when the Court instructed the jury, "but unless the contributory negligence was the proximate cause of the accident, and if in spite of such contributory negligence (that is, negligence which contributed as a proximate cause,) the accident could have been avoided by the use of ordinary care on the part of the defendant, then the plaintiff is still entitled to recover." The charge destroyed the defense of contributory negligence. In every case where there is contributory negligence, the defendant could have avoided the injury by ordinary care, for the simple reason that there can be no such thing as contributory negligence unless the defendant be negligent. The error complained of is the same error which was condemned in Cooper v. Ry. Co.,
The judgment of the Circuit Court is reversed, and the case remanded for a new trial.