Easterling v. Railroad Co. , 91 S.C. 546 ( 1912 )

July 1, 1912. The opinion of the Court was delivered by The exceptions raise only two questions:

1. Was this action brought under section 2132, volume 1, Code 1902?

2. Did the Court err in refusing to direct the verdict for defendants?

Section 2132, so far as applicable to this case, reads: "A bell of at least thirty pounds weight and a steam whistle shall be placed on each locomotive engine, and such bell shall be rung, or such whistle sounded, by the engineer or fireman, at a distance of at least five hundred yards from the place where the railroad crosses any public highway or street or traveled place, and be kept ringing or whistling until the engine has crossed such highway or street or traveled place; * * *"

The complaint charges, in paragraph 4, that Easterling "was crossing a public crossing and traveled place," when he was struck and killed by an engine and train of cars operated by the defendant railroad company. In paragraph 5 it is alleged that his death was caused by the negligence, recklessness and wantonness of the defendants in "failing and omitting to give any signal, by ringing the bell or sounding the whistle, or in any other way whatsoever of the approach of said locomotive and train of cars to said public crossing or traveled place."

These allegations are clearly sufficient to bring the case under the statute. The answer of defendants and the course of the trial clearly show that defendants were fully apprised of the fact that plaintiff intended to rely upon the statute. But if the allegations were so indefinite as to leave the matter in doubt, their remedy was by motion to make the complaint more definite and certain. Lee v. R. Co., 84 S.C. 140.

There was abundant testimony to carry the case to the jury and to sustain the verdict. There was positive testimony that the crossing signals were not given. This was sufficient to compel submission to the jury of the issue of recklessness and wantonness (Mack v. Ry.,52 S.C. 323, 29 S.E. 905; Osteen v. Ry., 76 S.C. 368,57 S.E. 196), and, therefore, to prevent a nonsuit or the direction of a verdict on the ground that the only reasonable inference to be drawn from the testimony was that intestate was guilty of contributory negligence because that is no defense to a reckless or wanton injury. Nor can it be said that the only inference to be drawn from the testimony is that intestate was "guilty of gross or wilful negligence, or was acting in violation of the law, and that such gross or wilful negligence or unlawful act contributed to the injury," so as to defeat a recovery under the provision of section 2139, Code 1902.

Affirmed.

MESSRS. JUSTICES WATTS and FRASER did not participate.