Strom v. Payne, Dir. Gen. , 119 S.C. 51 ( 1922 )

April 11, 1922. The opinion of the Court was delivered by This is an action for damages to the plaintiff at a railroad crossing. The engineer and fireman were joined as parties defendant. Many acts of negligence were alleged. The negligence alleged was that there was a want of notice to those who were using the crossing. The plaintiff was a stranger in the neighborhood and to the whole surroundings. He alleges that he was on the railroad track, and the train was upon him before he knew of the danger. Among other specifications of negligence, there was alleged a failure to blow the whistle or ring the bell. The engineer and fireman were not in any way connected with some of the allegations of negligence. It was their duty under the statute to blow the whistle or ring the bell, and if they did not do so, and the injury resulted from such failure, as the proximate cause, then they were responsible. If they performed this duty, then (for that cause) the Director General was not liable. The liability of the Director General (for that cause) depended upon the liability of the engineer or fireman. There were other specifications of negligence, however, for which the engineer and fireman were in no way liable.

When the presiding Judge came to charge the jury, he told them that they might find against any one of the defendants. That charge was correct, taking the whole complaint and the whole evidence. The conflict among the witnesses was as to the statutory signals. After his Honor had charged the jury that they could find against any one of the defendants, the plaintiff's attorney said that he did not think a verdict against the Director General alone would be good. He also stated that he did not think that the fireman was responsible, but that the jury could find against the Director General and the engineer as the responsible man. The practical effect was to reduce the issue to the statutory signals and to withdraw the claim against the fireman.

I. The first assignment of error is that the presiding Judge made inconsistent charges. As above explained, the charges are not inconsistent. The defendant was not prejudiced by reducing the issue to one specification of negligence.

II. The next specification of error is the claim that the Judge charged on the facts when he said, "The engineer is the responsible man." The statute makes the engineer and fireman responsible for the ringing of the bell and the blowing of the whistle, and there was no objection to the withdrawal of the action against the fireman.

III. The next exception is as to the form of the verdict. The verdict was:

"We find for the plaintiff * * * against Walker D. Hines and Capers Madden."

The words "Director General" were omitted. That was a mere clerical error, that cannot produce confusion. The whole record shows that the verdict was against Mr. Hines in his official character, and not as an individual.

IV. The fourth and fifth exceptions do not state any error, but merely refer to other portions of the record, and cannot be considered.

The judgment is affirmed.

MR. JUSTICE WATTS did not participate on account of sickness.