Bamberg v. Atlantic Coast Line R. Co.

• Decision Date: 07 October 1905
• Citation: 51 S.E. 988,72 S.C. 389
• Parties: BAMBERG et al. v. ATLANTIC COAST LINE R. CO.
• Court: South Carolina Supreme Court

51 S.E. 988

72 S.C. 389

BAMBERG et al. v. ATLANTIC COAST LINE R. CO.

Supreme Court of South Carolina

October 7, 1905

Appeal from Common Pleas Circuit Court of Barnwell County; Klugh Judge.

Action by Mary A. Bamberg and her husband, C. T. Bamberg, against the Atlantic Coast Line Railroad Company. From judgment for plaintiffs, defendant appeals. Affirmed.

J. T Barron and Robt. Aldrich, for appellant. Bates & Simms, for respondents.

WOODS J.

The plaintiff, in going from her home in the town of Denmark to the defendant's passenger station, undertook to cross the railroad track at a point very near the station, and was struck by the locomotive of the train she intended to take as a passenger. For the injuries resulting she recovered judgment.

1. The first exception charges error in the refusal of the circuit court to sustain the demurrer interposed, on the ground that the complaint failed to state facts sufficient to constitute a cause of action, because, as defendant insists, "the facts as stated in the complaint show that the plaintiff's injuries were due to her own negligence in attempting to cross the railroad track in front of a moving train, and in such close proximity thereto as to render it impossible for her to do so without being struck by the engine." It is alleged in the second paragraph of the complaint that the plaintiff, intending to become a passenger, was approaching the station from her home in ""the only way provided by said railroad for passengers in her neighborhood to reach the said depot, and which way was that adopted by the public by the consent or acquiescence of the defendant for passengers in approaching defendant's depot from said neighborhood." In the third paragraph the complaint continues: "That after walking a short while said plaintiff reached the point where the defendant's side track, commonly known as the 'House Track,' ran into the main track, and the plaintiff, as usual with passengers, undertook to cross the main track from the thoroughfare and traveled place upon which she had been walking as aforesaid, in order to reach the other thoroughfare and traveled place between the main track and said 'House Track,' and the only way provided by the said defendant for passengers as aforesaid to reach the depot, when to plaintiff's surprise and horror and without warning on the part of the defendant, and without the ringing of the bell or the blowing of the whistle, the locomotive of defendant's said passenger train, under the control of defendant's agents and servants, willfully, negligently, recklessly, and wantonly struck her," etc. The distinct point made by defendant is that, while negligence is alleged against those in charge of the train, there is no allegation that the plaintiff did not see or hear the train, and, being in the possession of her senses, it must be presumed as a matter of law the plaintiff did hear and see it, and will be held guilty of contributory negligence in attempting to cross the track in front of it. This position is untenable. If the courts could presume that one about to cross a railroad track would always be aware by sight or hearing of the approach of a train without the blowing of a whistle or the ringing of a bell, it would be quite unnecessary to require these signals. The plaintiff having set out negligent acts of the defendant, which she alleged caused the injury, it was not necessary for her to anticipate the affirmative defense of contributory negligence by denying that she heard or saw the approaching train. Donahue v. Railroad Co., 32 S.C. 299, 11 S.E. 95, 17 Am. St. Rep. 854.

2. The defendant next insists the motion for nonsuit should have been granted, because contributory negligence was conclusively shown by the failure of the plaintiff to look and listen before attempting to cross the track. No doubt the failure to look and listen immediately before going on a railroad track, under some circumstances, would be held to admit of no other inference than that the person injured was guilty of contributory negligence, and in such cases the court would grant a nonsuit on the principle announced in Jarrell v. Railway Co., 58 S.C. 491, 36 S.E. 910. But support is not to be found in principle or authority for the proposition that it is contributory negligence, under all circumstances, not to look and listen before attempting to cross a railroad track. The view taken in this state is...