Southern Ry. Co. v. Carroll

• Decision Date: 29 May 1905
• Docket Number: 582.
• Citation: 138 F. 638
• Parties: SOUTHERN RY. CO. v. CARROLL.
• Court: U.S. Court of Appeals — Fourth Circuit

138 F. 638

SOUTHERN RY. CO. v. CARROLL.

No. 582.

United States Court of Appeals, Fourth Circuit.

May 29, 1905

C. P Sanders, for plaintiff in error.

Jos. A McCullough (J. C. Wallace and H. J. Haynsworth, on the briefs), for defendant in error.

Before GOFF and PRITCHARD, Circuit Judges, and BOYD, District Judge.

BOYD District Judge.

John L Carroll, the plaintiff below, brought this action against the Southern Railway Company, the defendant below, alleging that whilst he was in the act of driving, with his horse and buggy, across the railroad of the defendant, at a public crossing in the suburbs of Union, S.C., on the 2d of April 1900, at 9 or 10 o'clock at night, the said defendant, by its servants and employes, negligently caused a locomotive drawing a train of cars on its railroad to run against, into, and upon him, the plaintiff, killing his horse, breaking his buggy, and injuring him in person; and in his suit the said plaintiff seeks to recover damages for the alleged injury both to himself and his property. The cause was tried in the Circuit Court for the District of South Carolina, at Charleston, before a jury. A verdict was rendered in favor of the plaintiff, assessing his damages at $900, and judgment accordingly rendered. The case comes to this court by writ of error sued out by the Southern Railway Company, the defendant.

Several exceptions were taken in the course of the trial, and to the charge of the court, all of which appear of record, and assignments of error thereon have been presented by counsel for our consideration. We are of the opinion, however, that, in order to dispose of the case, we need only to pass upon the question as to whether or not the plaintiff, upon his own statement, was entitled to recover. At the close of the testimony the defendant's counsel requested the court to direct a verdict for the defendant, on the ground, in substance, that plaintiff's evidence was not sufficient in law to warrant his recovery. The court declined to give this instruction, to which refusal the defendant's counsel excepted. The plaintiff, John L. Carroll, who was a witness in his own behalf, testified substantially: That in the spring of 1900 he was engaged in grading foundations for the Buffalo Cotton Mills, about three or three and a half miles from the town of Union S.C. That during the time he had been engaged in the work, which was three or four weeks, he had been to the town of Union on several occasions, and had crossed the Southern Railway tracks, about the corporate limits of the town, six or eight times. That on the 2d of April, 1900, he came to Union on business, about 4 or 5 o'clock in the afternoon. He traveled in a top buggy, drawn by one horse. He met some friends in Union that afternoon, and went with them to the 7:45 p.m. train, on which they were leaving, to see them off. Some half or three-quarters of an hour later he hitched his horse to the buggy, and started home. The night was very cloudy, the wind was blowing, and the side curtains to the buggy were buttoned down. That he had brought some sardines and crackers which were on the he was eating them or not. That he was driving along the public road in a 'dog he was eating them or not. That he was driving along the public road in a 'dog trot,' when all at once he heard a train, and just as he saw the headlight he discovered that his horse was on the track, and that he did not have time to cross. He undertook to pull his horse to the left, down the track, but before he could do this the engine struck him, killing the horse, knocking the top off the buggy, and otherwise injuring it, and throwing the plaintiff out upon the ground. Upon cross-examination the plaintiff admitted that he knew the railroad was there, about the limits of the town; that he had crossed it several times in the daylight at the same place, where he was attempting to cross that night. He further admitted that he drove steadily along in a 'dog trot,' as he described it, and did not look or listen to see whether he was approaching the railroad, or whether there was a train nearby; and that his horse was on the railroad track before he saw or heard the train, which was then so closely upon him that he could not escape. It was a fact, undisputed on the trial, that the headlight upon the engine of the train was burning.

The principal point of contention at the trial seems to have been whether or not the engineer complied with the provisions of a South Carolina statute which requires that a bell shall be rung or a whistle sounded upon all moving trains at the distance of at least 500 yards from the place where a railroad crosses any public highway, or street, or travel place, and be kept ringing or whistling until the engine has crossed such highway, or street, or travel place; and a further statute of South Carolina which provides that, if a person is injured in his person or property by collision with the engine or cars of a railroad corporation at a crossing it appears that the corporation neglected to give the signals required, and that such neglect contributed to the injury, the corporation shall be liable for all damages caused by the collision, unless it is shown that, in addition to a mere want of ordinary care, the person injured, or the person having charge of his person or property, was, at the time of the collision, guilty of gross or willful negligence, or was acting in violation of the law, and that such gross or willful negligence or unlawful act contributed to the injury. There were several witnesses introduced, both by the plaintiff and the defendant, who testified in regard to the ringing of the bell and sounding of the whistle on the train which came in collision with plaintiff's horse and buggy. The witnesses in behalf of the plaintiff principally gave testimony of a negative character upon this point-- that is, they stated that they lived in the vicinity, but did not hear the bell or the whistle upon the train-- though some of them stated that they heard the...