Bishop v. Southern Ry.

• Decision Date: 16 April 1902
• Citation: 63 S.C. 532,41 S.E. 808
• Parties: BISHOP et al. v. SOUTHERN RY. (two cases).
• Court: South Carolina Supreme Court

41 S.E. 808

63 S.C. 532

BISHOP et al.

v.SOUTHERN RY. (two cases).

Supreme Court of South Carolina.

April 16, 1902.

RAILROADS—INJURY AT CROSSING—FAILURE TO SIGNAL.

1. Where plaintiff sues for injuries at a railroad crossing, and proves a failure to give statutory signals, the burden of proof is on the railroad company to show want of care.

2. Plaintiff drove onto a public crossing in a town where a gate was maintained by the railroad company. The gate was up, and a train approached without giving the statutory signals. In order to avoid a collision, he drove down the track, and his horse ran away and was injured. Held, that the railroad company was liable as if the accident had occurred at the crossing.

Appeals from common pleas circuit court of Greenville county; Benet, Judge.

Actions by J. W. Bishop and by Mary J. and J. W. Bishop against the Southern Railway. Judgments for plaintiffs, and defendant appeals. Affirmed.

T. P. Cothran, for appellant.

C. J. Hunt and B. A. Morgan, for respondents.

POPE, J. We make this quotation from the case for appeal: "Actions for $1,083 and $1,500, respectively, commenced by the services of summons and complaint on February 9, 1901. The facts of the two causes are the same, the only difference being that in the first cause the suit is for personal injury and damages to property; in the second, for personal injury only. The injuries and damages complained of were alleged to have been caused by collision with a passenger train of defendant at the Buncombe road crossing, near the city of Greenville, on the afternoon of December 6, 1900. Both causes came on to be heard together before his honor Judge W. C. Benet and a jury at the March, 1901, term of the court of common pleas for Greenville county. The jury returned a verdict in the first named cause for $283, and in the second for $1,000, upon which judgments were duly entered. Motions for new trials on the minutes were refused."

After judgment, an appeal was taken on the three following grounds, to wit:

"(1) Because his honor erred in charging the jury as follows: 'The railway company takes upon itself to prove that it was not negligent' The error being that the burden of proof was upon the plaintiffs to show that the defendant was guilty of negligence.

"(2) Because his honor erred in modifying the defendant's fourth request to charge as follows: 'That is the law, unless you are satisfied from the testimony that that accident occurred through no willful act of the plaintiffs themselves, but was the result of their efforts to escape from danger; for if the railroad was negligent in failing to sound the signals, and if plaintiffs, in attempting to cross that track, discovered themselves in their danger, and if they left the crossing, endeavoring to escape from that danger, and if they were injured, the railroad company cannot get any comfort from that fact, if fact it be, by the collision taking place not on the crossing, if it is also shown that the parties were on the crossing when they saw the danger, and left the crossing to avoid the danger, but did not succeed in escaping the danger.' The error being that the statute was passed for the protection of those injured at a railroad crossing by the engines or cars of the railroad company. It does not afford protection to one whose horse has become frightened and has run upon the railroad track some forty or fifty feet away from the crossing, where the collision takes place.

"(3) Because his honor erred in charging the jury as follows: 'So I charge you that if a person finds himself on a crossing, and he sees that a collision will occur, and he then and there, in order to avoid danger, leaves the railroad crossing, and is injured beyond the crossing, the mere fact of his not being upon the railroad crossing when injured will not deprive him of the benefit of the signaling statutes. The railroad would be liable unless it shows that the person is guilty of contributory negligence.' The error being as set in second, above."

We will now pass upon these exceptions in their order:

Exception 1. The words excepted to, "The railway company takes it upon itself to prove that it was not negligent, " are a part of this sentence in the judge's charge to the jury: "The plaintiffs take upon themselves the proving of their claim, and must do so by the preponderance of the testimony. The burden of proof is upon them to prove before you can find a verdict for them, and the railway company takes it upon itself to prove that it was not negligent" The charge of the...