9598 | S.C. | Feb 9, 1917
February 9, 1917. The opinion of the Court was delivered by Tort, for the negligent injury to personal property. Defense, the injury resulted from the plaintiffs' contributory negligence. The thing hurt was a buggy and two horses attached; the horses were killed, and the buggy and a gun were demolished. The instrumentality was a rapidly moving freight train. The place was at Gaillard's crossing of the railroad track by a dirt highway, in a deep curve of the track, and just out of a cut. The verdict was for the plaintiffs for $600.
There are three exceptions; but there is only one question, and that is: Was there testimony tending to show such negligence of the defendant that caused the hurt? The third exception makes reference to the rule in Danner's case; but there is no pretense that the rule was applied by the Court below, or that it now has any relevancy to the case.
The circumstances of the accident were these: The plaintiffs were driving a pair of horses hitched to a buggy, and *339 as the horses walked upon the railroad track at the crossing, the tongue of the buggy dropped down and halted the horses; one of the plaintiffs jumped out of the buggy to look after the broken part, and just then and almost immediately the train of cars came upon the team.
The plaintiffs testified there was no signal of the train's approach, by bell or by whistle; had there been they would not have driven upon the track. It was late in the nighttime, and the night was dark, and the headlight was aflame. It is true the train crew testified that the signals were given; but of the truth of the matter the jury had to judge. If not given, that of course was negligence.
The real contention of the defendant was that the signals were not necessary to protect a traveler who knew from other sources of the train's near approach. That may be true; but the only testimony tending to prove such knowledge was that of the plaintiffs. They swore that just as they were on the track they saw the headlight, maybe a quarter of a mile away.
The plaintiffs further testified the impact took place in a minute after they were on the track; and the defendant's witnesses testified the train was running 20 or 25 miles an hour. There was no testimony that the plaintiffs had notice of the near approach of the train in sufficient time to have escaped the collision; and notice could serve no other end to defeat their right.
The Court was right to send the case to the jury; and the judgment is affirmed. *340