Risinger v. Southern Ry. Co.

• Decision Date: 11 March 1901
• Citation: 38 S.E. 1,59 S.C. 429
• Parties: RISINGER v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

38 S.E. 1

59 S.C. 429

RISINGER v. SOUTHERN RY. CO.

Supreme Court of South Carolina

March 11, 1901

Appeal from common pleas circuit court of Lexington county; James Aldrich, Judge.

Action by Mrs. Debby Risinger against the Southern Railway Company. At the close of evidence motion for nonsuit was granted, and plaintiff appeals. Reversed.

Efird & Dreher and E. L. Asbill, for appellant.

B. L Abney, for respondent.

POPE J.

The complaint alleged that Jacob D. Risinger was killed on the 23d day of January, A. D. 1897, in the county of Lexington in said state, by the defendant's engine and tender, run on its track through the corporate limits of the town of Leesville, "so negligently, rapidly, and unskillfully and without giving the statutory signals of blowing its whistle and ringing the bell, across an open space adjoining a street crossing defendant's track in front of its depot, where people were accustomed to pass and repass continuously, in going from the street of the town to defendant's depot," and that thereby the plaintiff, as administratrix of the estate of said Jacob D. Risinger, was entitled to recover $1,950 damages, for the benefit of herself as the widow and the eight children of the said Jacob D. Risinger, deceased. Of course, this is an action under Lord Campbell's act. At the hearing before Judge Aldrich and a jury, after plaintiff had offered her testimony, the defendant moved for a nonsuit on grounds we shall hereafter specify. Judge Aldrich granted the motion by a short order. The plaintiff now appeals.

The grounds upon which the nonsuit was granted, in the language of the circuit judge, are: "When a motion for nonsuit is made, it is the duty of the court to pass upon it as he would any other issue presented to him. Without undertaking to elaborate the grounds of this motion, or to follow the argument presented on either side, I think it will be proper, first, to refer to the allegations of the complaint. Inverting somewhat the order of the allegations, the charge is that Mr. Jacob D. Risinger was killed by this train. The allegation is that he was killed while upon or crossing an open space adjoining a street crossing on defendant's track in front of its depot, where people were accustomed to pass and repass continuously in going from the street of the town to defendant's depot. The allegation is specific that it was not a highway. It was not a street, because the allegation is that this open space adjoins a street, and the allegation is that it is an open space, where people were accustomed to pass and repass continuously in going to and from the street of the town to defendant's depot. Assuming, therefore, that the purport of this allegation is to allege that this open space was a traveled place, in the sense of the statute, we must construe, first, what a 'traveled place' is. It is where the public not only travel, but have a legal right to travel. Now, the testimony here, in my judgment, all of it proves an occupation of that open space by permission of the railroad. There is no evidence tending to show that open space was a traveled place. The next allegation is that it was negligence in the failure of the engineer to give the statutory signal of blowing the whistle and ringing the bell. That statutory duty is placed upon the railway company for the protection of travelers upon highways, streets, and traveled places; and if, as alleged here, the person was not killed on such highway, street, of traveled place, the failure to give those signals could not be actionable. Another is as to the rapid running of the engine. The rapid running of a train, per se, is no evidence of negligence. The other allegation is that it was negligent by leaving a car upon a side track. The railroad had the right to leave its car upon this side track, if it does so in accordance with law, and there is nothing shown here that the conduct of the railway company in placing its car where it was is illegal."

The circuit judge erred, as it is suggested by the appellant, (1) in that h...