Thompson v. Seabd. Air Line Ry

• Decision Date: 17 October 1907
• Citation: 58 S.E. 1094,78 S. c. 384
• Parties: THOMPSON v. SEABOARD AIR LINE RY.
• Court: South Carolina Supreme Court

58 S.E. 1094

(78 S. c. 384)

THOMPSON

v.SEABOARD AIR LINE RY.

Supreme Court of South Carolina.

Oct. 17, 1907.

1. Railroads — Injuries to Animals at Crossing — Negligence — Question fob Juby.

In an action against a railroad company for killing a team stalled on the track at a crossing in consequence of the wheel of the wagon going into a ditch by the side of the railroad bridge at the crossing, the evidence showed that the road ran beside the track, that at the bridge it made a short turn to cross the track, making a long bridge necessary, and that the bridge had been reported to the county supervisor as unsafe. Held that the question whether the bridge was unsafe was for the jury, though it had been in like condition for some years.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1627-1630.]

2. Same—Pboximate Cause—Question fob Jury.

Where a team stalled on a railroad track at a crossing in consequence of a defect in the railroad bridge was killed by a train, the question whether the defect in the bridge was the proximate cause of the accident was for the jury. (Per Pope, C. J., and Jones, J.)

[Ed. Note.—For cases in point, see Cent. Dig. vol. 41, Railroads, § 1640.]

3. Appeal—Questions Not Raised in Trial Court—Review.

A question cannot be raised for the first time in the Supreme Court on appeal.

[Ed. Note.—For cases in point, see Cent. Dig. voi. 2, Appeal and Error, §§ 1018-1034.]

4. Trial — Instructions — Refusal to Give Instructions Embodied in Those Given.

It is not error to refuse a requested charge covered by the general charge.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, §§ 651-659.]

Appeal from Common Pleas Circuit Court of Richland County; Geo. E. Prince, Judge.

Action by J. M. Thompson against the Seaboard Air Line Railway. From a judgment for plaintiff, defendant appeals. Affirmed.

Efird & Dreher and Lyles & McMahan, for appellant.

G. T. Graham and Nelson & Nelson, for respondent.

POPE, C. J. The plaintiff, J. M. Thompson, a citizen of Lexington county, owned, in March, 1905, a pair of mules, wagon, and harness. On the 9th of March he hired them to his brother to do some hauling, who about 9 o'clock that night was traveling along the Two Notch road, a public highway in Richland county, at a point where the highway crosses the track of the defendant, about 9 miles from Columbia. In attempting to cross a bridge at the crossing the front wheel of the wagon missed the end of the bridge and went into the ditch, thus stopping the mules. The vestibule train of the defendant, known as the "Florida Limited, " due about that time at Weddell, a small station a few hundred yards from the crossing, struck the mules and killed them and injured the harness and wagon considerably. The plaintiff brought suit alleging negligence on the part of the defendant in failing to keep the bridge in proper repair, and willfulness and wanton ness in running its train at an excessive rate of speed and in failing to stop in time to prevent injury to plaintiff's property. The answer of the defendant was a general denial. The case came on for hearing at the January, 1907, term of court for Lexington county, and resulted in a verdict of $450 for the plaintiff. The defendant appeals.

The first exception alleges error on the part of the circuit judge in refusing to charge that there was no evidence tending to show that the plaintiff's property was injured by reason of the alleged improper construction of the bridge In question. That there was at least some evidence tending to show that the bridge was not properly constructed we think is quite clear. It was shown that the road, ran right down beside the railroad track and that this bridge made a sharp turn to cross the railroad, thus making a long bridge necessary. Again, there was evidence that the bridge had been reported to the county supervisor as unsafe. True, the bridge had been in like condition for some years, but that fact would not raise a conclusive presumption that it was properly...