Dyson v. Southern Railway , 83 S.C. 354 ( 1909 )

This is an action for damages, alleged to have been sustained by the plaintiff, through the wrongful acts of the defendant.

The complaint alleges, that on the 15th of November, 1905, the plaintiff was going down Taylor street, in Columbia, S.C. when, upon reaching the corner of Taylor and Pulaski streets, where defendant's main line and other tracks pass, he found Taylor street blocked by defendant's freight cars; that in order to proceed on his way, he was compelled to pass through an aperture about ten feet wide; that in crossing said main line on Taylor street he was struck by the engine of a passenger train and injured. "That said occurrence was caused by the negligent, wilful, wanton and malicious conduct of the defendant in that: (a) their first two tracks were blocked with freight cars, obscuring the view of an approaching train on the main line; (b) in that defendant did not have a watchman or flagman to give warning of danger, nor did they warn this plaintiff of the danger of crossing said main line; (c) in that the defendant failed to sound the whistle or ring the bell for this crossing, in accordance with the statute so made and provided; (d) in that defendant was running its train at a reckless and unlawful rate of speed in the city limits."

The defendant denied the allegations of negligence and wilfulness, and set up as a defense "that plaintiff was guilty of negligence and recklessness in attempting to cross the track, immediately in front of an approaching train, without looking out for such train, or taking any care to avoid a collision therewith; and that such gross negligence and recklessness on his part contributed as a proximate cause to the injury received by him."

At the conclusion of all the testimony, the defendant made a motion for the direction of a verdict, which was refused.

The jury rendered a verdict in favor of the plaintiff for $500, whereupon the defendant appealed upon exception, which will be incorporated in the report of the case.

First exception: This exception can not be sustained, for the reason that there was testimony tending to prove the allegations of the complaint.

Second exception: As just stated, there was testimony tending to sustain the allegations of the complaint, and, conceding that there was negligence on the part of the plaintiff, the question as to proximate cause of the injury was properly submitted to the jury.

Third exception: In the case of Harbert v. Ry., 78 S.C. 537,550, 59 S.E., 644, the Court had under consideration a similar question, and disposed of it in these words: "The proposition which the appellant contends should have been charged, is distinct from that which was charged, and should have been presented in a separate request by the appellant. Moreover, the charge embodied a sound proposition of law."

Practically the error assigned by the foregoing exception is not that there was error in the proposition charged, but that there should have been a further charge, explanatory of the proposition, with reference to the defenses mentioned in the exception. The case of Harbert v. Ry., 78 S.C. 537,59 S.E., 64, is conclusive of this question.

Fourth exception, Subdivision (1): The authorities are in irreconcilable conflict, as to the question whether the violation of a town ordinance, regulating the rate of speed, is evidence per se of negligence.

It is true, it has been ruled in this State that the failure to comply with the statutory requirements, as to the ringing of the bell or blowing the whistle within five hundred yards of a crossing, is negligence per se. Hankinson v. Ry., 41 S.C. 1,19 S.E., 206; Strother v. Ry., 47 S.C. 375,25 S.E., 272; Smith v. Ry., 53 S.C. 121, 30 S.E., 697;Bowen v. Ry., 58 S.C. 222, 36 S.E., 590; Davis v. Ry.,63 S.C. 370, 41 S.E., 892.

But in that case the railroad, by the erection of blowposts at the proper distance from the crossing, can comply, accurately, with the statutory requirements, while in the case of an ordinance regulating the speed of trains there is no exact standard by which the railroad can know that it is not exceeding, even in the smallest degree, the prescribed rate of speed. Therefore, the running of a train in a town, where there is an ordinance regulating the rate of speed, must necessarily be attended with uncertainty, unless the speed is so slow as to consume time unnecessarily, and be a constant annoyance to the traveling public.

The violation of such ordinance is not per se evidence of negligence, but is a circumstance to be considered by the jury in determining this question. This assignment of error is sustained.

Fourth exception, Subdivision (2): This question is disposed of by what was said in considering the third exception.

Fifth exception: Subdivision (1) has already been disposed of; and the appellant has failed to make it appear in what respect the error assigned in Subdivision (2) was prejudicial to its rights.

Sixth exception: The question presented by this exception has already been disposed of, and the same may be said of the seventh and eight exceptions.

For these reasons I dissent.