Carter v. Charleston & W. C. Ry. Co

Decision Date25 June 1902
Citation64 S.C. 316,42 S.E. 161
CourtSouth Carolina Supreme Court
PartiesCARTER. v. CHARLESTON & W. C. RY. CO.

RAILROADS—INJURY TO TRESPASSER—CARE REQUIRED—EVIDENCE.

1. There was evidence that plaintiff went on a passenger train standing at a crossing for the purpose of buying oranges from the fruit vender thereon, and after the train started he jumped from it and broke his leg. Held, that allegations in the complaint that defendant failed to give the statutory signals before starting the train were properly stricken out, as defendant owed plaintiff no such duty.

2. In an action by a trespasser for injuries received in jumping from a moving train, evidence as to whether the accident would have happened if the train had remained standing at the station the usual time is inadmissible.

Appeal from common pleas circuit court of Barnwell county; Benet, Judge.

Action by Daniel Carter against the Charleston & Western Carolina Railway Company. Judgment of nonsuit, and plaintiff appeals. Affirmed.

R. A. Ellis and Davis & Best, for appellant.

Laura T. Izlar, for appellee.

POPE, J. Plaintiff sues to recover $5,000 damages received by him, caused by the alleged negligence of the defendant. His complaint alleges two causes of action—one for injuries received through the negligence of defendant in starting its train while standing across a highway at Martins, S. C, without giving the statutory signals, viz., by sounding its whistle or ringing its bell; the second cause of action was the alleged negligence of defendant in starting its train suddenly, so that plaintiff was prevented fram alighting from the train in safety, having his left leg fractured above the knee in reaching the ground in alighting from said train. Inasmuch as plaintiff was not a passenger on said defendant's train, nor expecting any one in whom he was interested to arrive or depart on or from the defendant's passenger train, nor was he waiting to cross said highway, but was merely at the railroad crossing expecting to buy some oranges from the newsboy and fruit agent on said train, the circuit judge held that the defendant railway company owed the plaintiff no duty compelling it to ring its bell or sound its whistle before its train should start from its standstill across the highway; and as he was not a passenger or expecting to become a passenger on said train, and, further, as he was not expecting any one to disembark from said train or embark on said train, his cause of action relating to the statutory signals demanded by law of railroads in order to avoid collisions at or on a railroad crossing of a highway, plaintiff's first cause of action, must be eliminated from the complaint. Plaintiff then proceeded to offer testimony as to the want of ordinary care of the defendant in its treatment of the plaintiff. The testimony offered by plaintiff tended to show that plaintiff entered defendant's train to purchase a couple of oranges from the fruit vender on the train; that he had purchased the oranges, but before he alighted from the train it was started, and it was not until the train had gone 75 yards that the plaintiff jumped off, breaking his leg. It was not in testimony that the fruit agent had any connection with the defendant; that the defendant owed any duty to the plaintiff; that the defendant did any act or uttered any word by which the plaintiff was induced to go on its train or jumped off of the same. Under these circumstances, the circuit judge granted defendant's motion for a nonsuit as soon as plain-tiff completed his testimony. After entry of judgment thereon, the plaintiff appealed upon the following grounds: "(1) Because his Honor struck out of the first cause of action of the complaint the following material allegations: So much of paragraph 5 as alleges that defendant moved its train, 'having in violation of law failed to give the signals required by law before starting said train, ' —and also because he struck out the whole of paragraph 7 and so much of paragraph 8 as alleged that said train did not stop as long as required by law; whereas he should have retained said portions of the complaint as a part thereof for the trial of this cause. (2) Because his Honor ruled that the complaint stated that plaintiff 'entered' the car to buy oranges, whereas he should have held that complaint only stated that plaintiff got on platform for purpose stated. (3) Because his Honor ruled that, because plaintiff was not a passenger, he could not, 'therefore, claim any benefit allowed by the statute which requires the blowing of whistles or ringing of bells when approaching a crossing, or the...

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