Boggero v. Southern Ry. Co

• Citation: 41 S.E. 819,64 S.C. 104
• Parties: BOGGERO v. SOUTHERN RY. CO.
• Decision Date: 21 April 1902
• Court: South Carolina Supreme Court

41 S.E. 819
64 S.C. 104

BOGGERO
v.
SOUTHERN RY. CO.

Supreme Court of South Carolina.

April 21, 1902.

TRIAL — INSTRUCTIONS—HARMLESS ERROR — ACTION FOR NEGLIGENCE—PLEADING—ACCIDENT ON TRACK—CARE REQUIRED—CITIES —REGULATION OF SPEED.

1. Where the court instructed on a matter which was not raised either by the pleadings or by evidence, the judgment will not be reversed where there are no reasonable grounds to suppose that the error affected the verdict.

2. Under Acts 1898, p. 693, regulating the practice in actions ex delicto, and providing that a party in such a suit shall not be required to state several acts of negligence separately, plaintiff may allege without separate statement and prove acts of negligence and of willful conduct, and recover on both.

3. In an action for an accident on a track at a point beyond a crossing, evidence of failure to give statutory signals at the crossing is admissible.

4. In an action for injuries to person on a track, a charge that if a railroad of ordinary care would give warnings at a particular place, then defendant is required to give such warnings, is not erroneous, the meaning being that defendant was required to give warning if such was demanded in exercise of ordinary care.

5. Rev. St. §§ 1630, 1633, giving railroad commissioners general supervision of railroads, and providing that on complaint of city or county officials they shall examine the condition and operation of the road in its limits, and remove any cause of complaint, does not give such commissioners exclusive jurisdiction of such matters, and deprive the municipality of the right to regulate the rate of speed within its limits.

6. A railroad company owes a greater duty to one on a railroad track with its consent than it does to a trespasser.

McIver, C. J., dissenting.

Appeal from common pleas circuit court of Greenwood county; Klugh, Judge.

Action by Emiliano Boggero against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The following is the complaint: "The complaint of the plaintiff herein respectfully shows unto the court: "(1) That the defendant is now, and was at the times hereinafter named, a corporation created by and under the laws of the state of Virginia.

"(2) That the defendant is now, and was at the times hereinafter named, the owner of, and as such operates and has control of, the engines, cars, and all other appurtenances and appliances belonging to or used on a certain line of railroad from Greenville, by way of and through Greenwood, to Columbia, all in the state of South Carolina, which said railroad is commonly known as and called the Columbia & Greenville Railroad.

"(3) That the defendant's railroad track, after entering the town of Greenwood from the direction of Greenville, crosses over and intersects the railroad track of the Charleston & Western Carolina Railway Company, and from said point of intersection the tracks of said two railroads run almost parallel for a long distance, to and beyond their respective depots.

"(4) That in a less distance than 150 yards from the point of intersection aforesaid the two said tracks cross a public street of the town of Greenwood near the home of C. G. Waller.

"(5) That in a less distance than 150 yards from the point where the two said tracks cross the aforesaid public street both of said tracks cross over the railroad track of the Seaboard Air Line Railway by means of a trestle or bridge over a deep cut or excavation made by the said Seaboard Air Line Railway at this point.

"(6) That in a less distance than 150 yards from the point where the two first-mentioned railroad tracks cross over the said cut or excavation, the two said tracks, to wit, that of the defendant and that of the Charleston & Western Carolina Railway Company, again cross over another public street of the town of Greenwood, leading from the east to the west side of the public square of said town.

"(7) That on the east side of said two railroad tracks, and about 15 or 20 yards therefrom, Logan street runs along almost parallel therewith from the public square of the said town of Greenwood over and beyond the cut or excavation made by the Seaboard Air Line Railway.

"(8) That on the west side of said two railroad tracks, and about 15 or 20 yards therefrom, another street of the town of Greenwood, leading from west side of public square of said town, by the Oregon Hotel, the storeroom of Joel S. Bailey and others, runs along almost parallel with said two tracks to within a few feet of the said cut of excavation made by the Seaboard Air Line Railway, where the same ends,

"(9) That in front of the. home of the said Joel S. Bailey, and at the terminus of the last-named street, there is now, and was at the times herein mentioned, and had been for a long time prior thereto, a well-constructed plank walk, which leads from the last-mentioned street up to the track of the

[41 S.E. 820]

Charleston & Western Carolina Railway Company, and extends across its track to the track of the defendant herein, where the same is fastened to and the planks thereof nailed upon the cross-ties of defendant's track.

"(10) That the said plank walk is about 30 yards from the cut or excavation hereinbefore mentioned, and on either side of said cut or excavation, and close thereto, are well-beaten footpaths leading to and from defendant's said track from and to Logan street; and between said footpaths and said plank walk, or on the opposite side of said track therefrom, are no walks or paths or other evidences of travel leading from defendant's track.

"(11) That the plank walk and footpaths above mentioned are now, were at the times herein mentioned, and have for a long time prior thereto been, continuously and generally used by the public, and a great number of the citizens of Greenwood in going or returning to or from Logan street, at or near said cut or excavation, and from all places beyond said cut or excavation, and on the west side of said railroad track, walk upon said track across said cut or excavation, where plank are also laid and fastened to the cross-ties of said track, until they reach the plank walk above mentioned; and the defendant has acquiesced in the use by the public of the said walk and along its track, and has knowledge thereof, and has never made objection thereto, but has allowed— perhaps constructed and maintained—the plank walk leading upon its track and fastened to the cross-ties thereof, and has thereby given the public permission to pass over its track to and from said plank walk from and to the said footpaths over and beyond the said cut or...