77 S.E. 289 | S.C. | 1913
February 19, 1913. The opinion of the Court was delivered by This was an action tried before his Honor, Judge Prince, and a jury, at September term of Court, 1912, for Beaufort county, and resulted in a verdict for plaintiff in the sum of five hundred ($500) dollars. No motion was made by the defendant for nonsuit or direction of verdict at the close of plaintiff's testimony or when the whole evidence was in. After verdict, a motion for a new trial was made, on the minutes of the Court, on the ground that there was no testimony to support the verdict and that the testimony showed that the plaintiff wilfully, by his action, contributed to his injury as a proximate cause, and that there was no testimony to show that the accident occurred at a public highway crossing and that there was no evidence to support the verdict for, either actual or punitive damages, *549 and even if there was evidence to support the verdict, the verdict was excessive and not warranted by the evidence to that extent.
A motion for a new trial being overruled, the defendant appealed and alleges error on the part of the trial Judge on nine (9) grounds, and some of these grounds are divided into subdivisions, but all allege error on the part of the trial Judge in his charge to the jury. The complaint alleged both an action under the common law and under the statute for failure to give statutory signals at a public road crossing. The complaint alleged that plaintiff was injured in a collision with the defendant's shifting engine, about five hundred (500) yards east of Burton station, where defendant's line of railway crosses Salem public road, in consequence of defendant's wilfully, wantonly and negligently operating said engine so as to run into a wagon in which the plaintiff was riding and alleged that no signboard was placed by defendant at the point where said line of railway crossed said public road and no signal of any nature, whatsoever was given by defendant's agents operating said shifting engine.
The complaint was construed in the charge as stating a cause of action on account of failure of defendant to give the statutory signals at public road crossings and throughout the entire charge the trial Judge conditioned the plaintiff's right to recover upon the question whether or not the crossing, where the accident occurred, was upon a public road, neighborhood road as distinguished from a plantation or private road. He was careful to inform the jury that a recovery could only be had by plaintiff upon proof that he was injured at a crossing upon a public road. The Judge's charge, as a whole, in reference to what was applicable under the statutory cause of action, set out in complaint, was unobjectionable and free from error. In defining the different kinds of roads, public, neighborhood and private, he substantially laid down the law as declared by *550
this Court in the cases of : State v. Sarter, 2 Strobhart, 65;State v. Hardin,
It was held in the case of State v. Kendell,
As to the complaint made as to his Honor's charge in reference to the statutory signals, secs. 2132 and 2139 of the Civil Code relating to the equipment of a railway engine, with bell, whistle and headlight and the duty of one in charge of the engine to ring the bell and blow the whistle within five hundred (500) yards of a crossing of a highway, street or traveled place as does sec. 3132, and also that any collision by a person or property with such engine of the railway on crossing by it over a highway, street or traveled place in the absence of the foregoing signals by the railway company in the absence of proof that such failure of the railway company did not contribute to the injury the railway shall be liable for all damages by the collision, unless it is shown that in addition to the mere want of ordinary care the person injured was at the time of the collision guilty of gross or wilful negligence or was acting in violation of law and that such gross or wilful negligence or unlawful act contributed to the injury, as provided in sec. 3229, have been so often before this Court that it is hardly necessary to do more than merely cite the numbers of such sections when injuries at railroad crossings of a highway, street or traveled place are up for consideration. When the Circuit Judge, in his own language and in a common sense way, explained to the jury what the law was and what it meant his work was admirably done and the jury could not fail to understand what his language meant, both as to these sections and the sections in reference to the signs to be *551 put up at the crossing where the law required them to be put. We find that the trial Judge was both careful and successful in conveying to the jury the meaning of the statutes regulating such cases as the one on trial.
The third exception alleges error in submitting to the jury the question of negligence in failing to give the statutory signals and failure to prove that the injury occurred at a public crossing, street or traveled place within the meaning of the statute, and that there was no testimony to support the finding of the verdict either on this or for punitive damages. No motion was made for a nonsuit or to direct a verdict for defendant before submission of the case to the jury as required by Rule Seventy-seven (77) of the Circuit Court. As was said by Chief Justice Jones, in Gue v. Wilson,
In the case at bar, there was some testimony to go to the jury from which they might infer negligence and recklessness on the part of the defendant as the cause of plaintiff's injury. It was testified to by several witnesses that the approach of the train was not noticed until the distress signal was blown when plaintiff was upon the track. There was some evidence that giving the statutory signals was omitted at a point where defendant maintained a whistle post, and the further testimony that the fireman left his post, when he should have been ringing the bell, to attend to other duties. This should have gone to the jury on the *552 question of wilfulness, wantonness or advertent failure to observe due care.
The Circuit Judge did not construe, and his attention was not called to the fact, that the complaint stated a cause of action at common law, but under his clear and comprehensive charge the defendant was not prejudiced thereby. During the whole trial it was treated as an action for statutory negligence and his charge was clear, pointed and plain. It is true that the complaint alleged negligence on the part of the railroad company, not only in failing to give signals, but in not placing signboards at the crossing; it is true that it is not necessary that contributory negligence on the part of the plaintiff, although not gross, is a good defense to the negligence on the part of the railroad for failing to place signboards; and it is also true that the Circuit Judge did not make this distinction between the gross contributory negligence necessary to defeat a recovery for the negligence of failing to give the signals and the ordinary contributory negligence which would defeat a recovery for the negligence of failing to place the signboards in his charge. But this was not a material error, for the reason that the plaintiff saw the railroad and knew of the crossing, and consequently the failure to place the signboards could not have been regarded by the jury as having any bearing on the accident.
After a careful consideration of all the exceptions, we are of the opinion that the exceptions should be overruled.
Judgment affirmed.
MR. JUSTICE FRASER concurs in the result. *553