125 S.E. 31 | S.C. | 1924
Lead Opinion
October 28, 1924. The opinion of the Court was delivered by This was an action to recover damages for alleged injuries received by the plaintiff, and for loss of mule and wagon, which were destroyed as he was attempting to cross the main line of the defendant in the town of Dillon on July *393 18, 1921; he having come into collision with one of defendant's trains.
After issue joined the case was heard before Judge De Vore and a jury at the March term of Court for Dillon county. At the conclusion of the testimony a motion was made for the direction of a verdict in favor of the defendant on the grounds:
"First, that there is no evidence of negligence on the part of the defendant; second, that the evidence conclusively shows that the plaintiff was guilty of gross contributory negligence and recklessness and wantonness, in that the testimony shows that the track was perfectly straight, and that, if he had looked at any time within 65 feet of that track, he could have seen the train approaching for at least 200 or 300 yards. The testimony conclusively shows that he did not take the slightest degree of care of his own safety."
His Honor refused the motion, and the jury found for plaintiff. After entry of judgment defendant appealed, and the only question raised by the exception is alleged error in failing to direct a verdict upon the second ground of motion for directed verdict before Judge De Vore.
His Honor committed no error in refusing to direct a verdict as asked for. There was ample testimony to submit the case to the jury for their determination. and the law in such cases is well settled: Wideman v. Hines,
The exception is overruled and judgment affirmed.
MESSRS. CHIEF JUSTICE GARY and JUSTICE FRASER concur.
MESSRS. JUSTICES COTHRAN and MARION dissent. *394
Dissenting Opinion
The undisputed evidence, including the testimony of the plaintiff, is that at a point 40 feet from the main line the train could have been seen approaching from 65 to 150 yards, and at the side track, 10 feet from the main line, it could have been seen for more than a mile. The conclusion is irresistible that he drove upon the track without taking the slightest care for his safety. The fact that he testified that he looked, when the evidence shows that if he had done so he would have seen the train, is not acceptable as evidence.