Still v. A.C.L.R. Co. , 113 S.C. 553 ( 1920 )

January 26, 1920. The opinion of the Court was delivered by "November 8, 1917, plaintiffs, in an automobile, were traveling along a public highway in Orangeburg county, which crossed defendant's track, near Cope, S.C. Upon reaching this crossing, plaintiffs alleged and testified, their automobile was deflected out of its course and wrecked, and they were both injured in their persons, by reason of the defective condition of the crossing, the duty of maintaining which rested upon defendant. By way of answer defendant pleaded a general denial and contributory negligence of plaintiffs. At the close of all the evidence, both for plaintiffs and defendant (the two cases being by consent tried together), defendant moved the Court to direct verdicts in its favor upon the grounds: (1) That there was no evidence of wilfulness; (2) that the only inference to be drawn from all the evidence was that plaintiffs' contributory negligence prevented any recovery. The motion was overruled, and the cases submitted to the jury on the issues of negligence and wilfulness. Verdicts for both plaintiffs were returned, upon which judgments were duly entered, from which judgments notices of appeal were seasonably given. The appeal is before this Court upon exceptions 4 and 5, to the refusal of motion to direct verdicts; all the other exceptions being abandoned. Upon the motion below it was conceded by defendant that there was evidence to go to the jury on the issue of negligence. It was contended, and it is contended here, that there was no evidence for the jury as to wilfulness or its equivalent, and that there could be no recovery, because the evidence conclusively showed that the negligence of plaintiffs contributed to their injuries as a proximate cause."

This appeal cannot be sustained. There was evidence from which it might be inferred that the defendant, whose duty it was to "guard or protect its rails by plank, timber, or otherwise, so as to secure a safe and easy passage across its road," did not protect the crossing at the place of the accident in any way, but allowed its rails to protrude above the ground 5 1/2 or 6 inches. That the ground approaching the crossing was in such condition that the automobile lights did not fall on the roadbed at night and that it could not be seen by one approaching the railroad at night. Some of the defendant's witnesses said the crossing was "fairly good," and "a little bad." These defendant's witnesses seemed, from the record, to have spoken from their general knowledge of conditions at the crossing. One witness for the plaintiff stated that he had had trouble at this crossing in September before the accident complained of. There was no error in refusing to direct a verdict for the defendant.

The judgment is affirmed.