81 S.E. 786 (S.C. 1913), 8698-8811, Sanders v. Southern Ry. Co., Carolina Division

Docket Nº:8698-8811.
Citation:81 S.E. 786, 97 S.C. 423
Opinion Judge:HYDRICK, J.
Party Name:SANDERS v. SOUTHERN RY. CO., CAROLINA DIVISION.
Attorney:Joseph W. Barnwell, of Charleston, and B. L. Abney, of Columbia, for appellant. Logan & Grace, of Charleston, for respondent.
Case Date:December 11, 1913
Court:Supreme Court of South Carolina

Page 786

81 S.E. 786 (S.C. 1913)

97 S.C. 423

SANDERS

v.

SOUTHERN RY. CO., CAROLINA DIVISION.

Nos. 8698-8811.

Supreme Court of South Carolina

December 11, 1913

Appeal from Common Pleas Circuit Court of Charleston County; Frank B. Gary, Judge.

"To be officially reported."

Action by Darby L. Sanders, administrator of Robert L. Sanders, against the Southern Railway Company, Carolina Division. Judgment for plaintiff, and defendant appeals. Reversed.

Gary, C.J., and Watts, J., dissenting.

Page 787

Joseph W. Barnwell, of Charleston, and B. L. Abney, of Columbia, for appellant.

Logan & Grace, of Charleston, for respondent.

HYDRICK, J.

While Robert Sanders was walking along defendant's right of way, going from Columbus street to Line street, in the city of Charleston, he was knocked down and run over by a box car, which was being pushed by a switch engine, and his leg was cut off. He recovered judgment against defendant for $12,500 damages for the injury. He died a short time after the verdict was rendered, and the action was continued in the name of the plaintiff, as administrator of his estate.

That part of defendant's right of way which lies between Columbus street and Line street is a parallelogram in shape. It is about 39 feet wide, and the distance between the streets is 491 feet. Besides the main track, it has on it five side tracks, and numerous switches connecting them with each other and with the main track. It is a part of defendant's switch yard, where switching is constantly being done. The west end of a public court, called Addison's court, which is 18 feet wide, abuts on the right of way about two-thirds of the distance from Columbus to Line street. This is in a populous part of the city, and, for more than 20 years, the public has used that part of defendant's right of way for a walkway between said streets, and between Addison's court and the streets. Whether they did so with the knowledge and acquiescence of the railroad company, and were licensees, or against its objection and in spite of its [97 S.C. 426] notices forbidding such use, and were trespassers, was one of the issues of fact which was hotly contested at the trial in the court below.

The first question presented by the appeal is whether the allegations of the complaint are sufficient to bring the case under the crossing statutes (sections 3222 and 3230 of the Civil Code of 1912).

Section 3222 requires that the bell shall be rung or the whistle sounded 500 yards from the place where the railroad crosses "any public highway or street or traveled place," and be kept ringing or whistling until the engine has crossed the same.

Section 3230 reads: "If a person is injured in his person or property by collision with the engines or cars of a railroad corporation at a crossing, and it appears that the corporation neglected to give the signals required by this chapter, and that such neglect contributed to the injury, the corporation shall be liable for all damages caused by the collision, or to a fine recoverable by indictment, as provided in the preceding section, 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."

The second and third paragraphs of the complaint are as follows:

"(2) That on or about the 8th day of August, 1907, at and between the hours of 5 and 6 o'clock p. m., the plaintiff above named, while on the east side of said defendant corporation's railway track, and at a point between Addison court, a public court in the city of Charleston, and Line street, a public street in the city of Charleston, and while at a traveled place and walkway and place where all people and the public in general have been passing and repassing [97 S.C. 427] for more than 20 years last past, and at a point where said defendant's railway track traverses a populous part of the city of Charleston, and a place much frequented by people passing to and fro along said railway going from Columbus street, one of the public streets of the city of Charleston, and from Addison's court, a public court in the city of Charleston, to Line street, another public street in the city of Charleston, all of which facts were well known to the defendant and its agents, servants, and employés; the said defendant corporation, its agents and servants, so negligently, recklessly, carelessly, and wantonly ran, managed, and operated one of the trains of cars that said train of cars approached said traveled place or walkway and populous part of the city of Charleston at a high and dangerous rate of speed, and without giving any signal by ringing the bell, so that the said plaintiff might have been aware of the approach of said train of cars, or taking any precaution whatever to avoid injuring said plaintiff, so that said plaintiff was unaware of the approach of said train of cars, and said train of cars struck said plaintiff with terrific force and violence, crushing and mangling plaintiff's leg, and bruising and injuring his face, and shocking his whole system.

(3) That the injuries to the plaintiff as aforesaid were caused to the plaintiff by the negligence, carelessness, recklessness, and wantonness of the said defendant corporation, its agents and servants, in approaching said traveled place or walkway and populous part of the city of Charleston at a high and dangerous rate of speed, and in not giving any signal by ringing the bell of said locomotive or taking any precaution whatever to avoid injuring said plaintiff."

Taking the foregoing allegations without the explanatory aid of the evidence showing

Page 788

the location of the right of way, the streets, and Addison's court, it could not be said with certainty that the place where plaintiff's intestate was injured was not an ordinary crossing. Therefore, in view of the allegation, which is repeated several times, that plaintiff [97 S.C. 428] was injured at "a traveled place," and that he was run down without any signal by ringing the bell or taking any precaution whatever to avoid injuring him, and giving these allegations a liberal construction, as we are required to do by the Code of Procedure (section 209), we think it clear that the complaint makes a case under the statutes.

In Easterling v. Railroad Co., 91 S.C. 546, 75 S.E. 133, the complaint alleged that Easterling "was crossing a public crossing and traveled place," when he was struck and killed by an engine and train of cars operated by the defendant railroad company. And it was alleged that his death was caused by the negligence, etc., of the defendant in "failing * * * to give any signal by ringing the bell or sounding the whistle or in any other way whatsoever of the approach of said locomotive and train of cars to said public crossing or traveled place." Those allegations were held sufficient to bring the case under the statute. The court also said that, if the allegations were so indefinite as to leave the matter in doubt, the remedy was by motion to make the complaint more definite and certain. That case seems to be conclusive of the question.

We think, however, that the court erred in submitting the case to the jury as one under the crossing statute, because the testimony failed to sustain the allegation that the injury occurred at a traveled place. In several cases this court has defined a traveled place to be one where people are not only accustomed to travel, but also have, in some way, acquired a legal right to travel. Hale v. Railroad Co., 34 S.C. 299, 13 S.E. 537; Barber v. Railroad Co., 34 S.C. 450, 13 S.E. 630; Hankinson v. Railroad Co., 41 S.C. 20, 19 S.E. 206; Strother v. Railroad Co., 47 S.C. 375, 25 S.E. 272; Risinger v. Railroad Co., 59 S.C. 429, 38 S.E. 1; Kirby v. Railroad Co., 63 S.C. 494, 41 S.E. 765.

When we speak of a legal right, we mean a right of such nature that it can be legally enforced, and cannot be lawfully denied or interfered with. There is no evidence that [97 S.C. 429] the public or the plaintiff's intestate had acquired any such right to travel where the injury occurred. The only evidence suggestive of such right is that the public had used the right of way for more than 20 years, under such circumstances as would ordinarily have given rise to a prescriptive right to travel there. But we have held that the public cannot acquire by prescription the right to use the right of way of a railroad company in a manner inconsistent with the company's right to use it for the purpose for which it was acquired. Matthews v. Railway, 67 S.C. 499, 46 S.E. 335, 65 L. R. A. 286; Blume v. Railway, 85 S.C. 440, 67 S.E. 546. Under the law as declared in these cases and the evidence in this case, the most that the plaintiff could have contended for was that he was a licensee, and entitled to ordinary care to prevent his injury.

As the facts do not bring the case within the statute, it requires no argument or citation of authority to show that defendant was prejudiced by the judge's charge, submitting it to the jury as a case under the statute. There are material differences between a case at common law and one under the statute. In a case at common law, plaintiff must prove the failure to ring the bell or blow the whistle, that the omission was negligence, and that such negligence was the proximate cause of the injury. In a case under the statute, if the plaintiff proves the failure to give the signals required, it is negligence per se, which is presumed to have caused the injury. Strother v. Railway, supra. In the former, the...

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