88 S.E. 131 | S.C. | 1916
February 29, 1916. The opinion of the Court was delivered by This is an action for damages, alleged to have been sustained, through the negligence and recklessness of the defendant, in causing the death of plaintiff's intestate.
The complaint in the fourth paragraph thereof alleges:
"That on the 23d of May, 1914, at night, one of the defendant's electric interurban cars, running late and rapidly leaving the town of Piedmont, South Carolina, and near the northern yard limit of said station, ran down and collided with plaintiff's deceased, Brown Williams, who was returning to his home from the town of Piedmont, in the most direct route on foot, and using the roadbed of the defendant, G., S. A. Railway Company, as was the custom which was known and acquiesced in by the said defendant, since the establishment of its road, said collision taking place at a point upon the defendant's said line of railway, which was intersected by a net work of paths and private crossings, and near a public crossing of the same, and in a thickly settled community, and where plaintiff's deceased could have been seen at a distance of from 200 to 300 yards, by the exercise of ordinary or proper care, the line being straight with no obstructions to interrupt the view of those operating said interurban cars, if agents of defendant had kept a lookout ahead, which the defendant's agents and servants negligently and recklessly failed to do, and negligently and recklessly failed to place car under control, after seeing plaintiff's deceased, and to give any signals and warning whatever of its approach; that from the injuries received by the negligent and reckless running *326 and management of said car the plaintiff died shortly thereafter."
The defendant, in its answer, denied all except the formal allegations of the complaint, and as a defense alleged:
"That the plaintiff's intestate negligently went upon defendant's right of way, and lay down upon defendant's track, and remained there in the face of an approaching car, which negligence on the part of plaintiff's intestate, contributed as a proximate cause of his injury and death."
The jury rendered a verdict in favor of the plaintiff for $2,500.00, actual damages, and the defendant appealed.
The first assignment of error, is, because his Honor, the presiding Judge, refused to direct a verdict for punitive damages on the ground that there was no testimony tending to show wilfulness or wantonness on the part of the defendant.
The fact that the jury rendered a verdict for actual damages alone, shows that this assignment of error cannot be sustained.
The next question for consideration is, whether there was error on the part of his Honor, the presiding Judge, in refusing to direct a verdict, on the ground that there was no testimony tending to show negligence, on the part of the defendant, operating as a proximate cause of the injury.
This exception must be overruled, for the reason that there was testimony tending to prove the said allegations of the plaintiff's complaint. Sentell v. Ry.,
The next assignment of error is, that his Honor, the presiding Judge, refused to direct a verdict for the defendant, on the ground that the testimony was susceptible of no other reasonable inference, than that the deceased was guilty of contributory negligence. *327
There was testimony tending to prove negligence on the part of the defendant, and likewise, that the deceased was guilty of contributory negligence, from which testimony the jury might reasonably have drawn more than one inference, as to the proximate cause of the injury. These issues were, therefore, properly submitted to the jury.
The last exception assigns error, in that part of the charge therein set forth, in that the presiding Judge instructed the jury, that they must find that the deceased was a licensee if the public had been accustomed to use the railroad track as a general walkway, without interference by the defendant, on the ground that this was a charge on the facts.
When the charge is considered in its entirety, it will be seen that it is not susceptible of the interpretation for which the appellant contends.
Judgment affirmed.
