Boggero v. Southern Ry. Co.

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

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.

McIver C.J., dissenting.

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 or 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 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 excavation.

(12) That the said town of Greenwood has nearly 5,000 inhabitants, and the tracks of this defendant's railroad run almost through the center of the said town, and it is very dangerous for a train to pass over the defendant's track at and between the points herein mentioned at a greater rate of speed than six miles per hour, and without ringing the bell or blowing the whistle of its engine, and without the constant watchout and care of its agents and servants in charge of its engine.

(13) That the town council of Greenwood, on the 19th day of September, 1899, passed an ordinance of the said town, which has never been repealed or altered, whereby all railroad companies were prohibited from running their trains at a greater rate of speed than six miles per hour from the cut or excavation herein mentioned to their respective depots and beyond.

(14) That on the 13th day of April, 1901, at about 8:30 o'clock p. m., while the plaintiff was walking along the defendant's railroad track between the cut or excavation hereinabove mentioned and the plank walk above mentioned, and at or near the said plank walk, intending to cross over on the said plank walk to the street leading by and to the storeroom of Joel S. Bailey, an engine with two cars attached thereto, in charge of and operated by the agents and servants of the defendant, negligently, carelessly, and without any signal or warning whatever, ran up behind him at a rapid rate of speed,--that is to say, at a greater speed than six miles per hour,--in violation of the ordinance of the town of Greenwood and the laws of this state, and without ringing its bell or blowing its whistle, although defendant's agents knew or ought to have known that the citizens of Greenwood were constantly passing along its track at this place, and although its engine was in a less distance than 500 yards of a public crossing, and was at the time passing over a place where defendant had permitted the public to travel; and before this plaintiff could step off of said track, the said engine struck him, knocking him down, and passing over and upon both his feet and legs, and so badly crushing and bruising them that, in order to save his life, it became necessary to amputate both of said legs.

(15) That by reason of the gross negligence, carelessness, and willful misconduct of the servants and agents of the defendant in failing to ring its bell or blow its whistle, in running its train at a dangerous rate of speed and in violation of the laws of the town of Greenwood and the laws of this state, in failing to keep the proper watchout, and in failing to give this plaintiff any warning or signal whatever of its approach, he has been damaged in the sum of $1,990.

Wherefore plaintiff prays judgment against the defendant company for the sum of $1,990, and the costs of this action."

The defendant answered as follows:

"(1) That it admits the truth of the statements contained in paragraphs 1, 2, and 3 of the complaint.

(2) That it denies each and every other allegation contained in the said complaint.

(3) The defendant alleges that the plaintiff had no legal right to walk upon the track of the defendant; that plaintiff was a trespasser, and the defendant owed him no duty except to refrain from willfully injuring him.

(4) That the plaintiff was walking, just before the accident, upon the side track of the defendant; that he heard the defendant's train approaching, but, mistaking it for a train upon the side track, he left said latter track without looking around, and stepped upon the defendant's track immediately in front of the engine, and was struck before the agents of defendant in charge of said train could prevent the disaster.

(5) The defendant further alleges that the injury to plaintiff was brought about by his own negligence, and that by his negligence the plaintiff contributed thereto. Wherefore the defendant demands that the complaint be dismissed, with costs."

From judgment for plaintiff, defendant appeals.

T. P. Cothran, for appellant. Caldwell & Park and Johnstone, Welsh & McGhee, for appellee.

GARY A. J.

This is an action for damages alleged to have been sustained by the plaintiff through the negligence of the defendant in cutting off both his legs with its train of cars at Greenwood, S. C., on the 13th of April, 1900. In order to understand clearly the facts out of which the controversy arose and the issues involved under the pleadings, it will be necessary to refer to the complaint and answer, which will be incorporated in the report of the case. The jury rendered a verdict in favor of the plaintiff for $1,200.

The defendant appealed upon exceptions, the first of which is as follows: "(1) The presiding judge erred in charging the jury as follows: 'Now, persons may acquire the right to go upon the property of others by the public...