Carter v. Southern Ry. Co.

• Decision Date: 02 October 1912
• Citation: 75 S.E. 952,93 S.C. 329
• Parties: CARTER v. SOUTHERN RY. CO. et al. [D1]
• Court: South Carolina Supreme Court

75 S.E. 952

93 S.C. 329

CARTER v. SOUTHERN RY. CO. et al. ^[D1]

Supreme Court of South Carolina

October 2, 1912

Appeal from Common Pleas Circuit Court of Fairfield County; R. C Watts, Judge.

"To be officially reported."

Action by Mary J. Carter, as administratrix of J. T. Carter deceased, against the Southern Railway Company and another. From a judgment for plaintiff against defendant named, it appeals. Affirmed.

The following are the exceptions:

"(1) Because his honor erred in refusing to grant the motion for a nonsuit and to direct a verdict in favor of the defendant upon the first ground, which was 'that there is no evidence in the case tending to show any breach of duty owed by the defendant to the plaintiff's intestate, and no evidence of any negligence whatever upon the part of the defendant company that was the proximate cause of his death.' The error being that the undisputed evidence shows that there was no negligence on the part of the defendant company, its servants or agents, that was the proximate cause of the death of plaintiff's intestate.

"(2) Because his honor erred in refusing the motion for a nonsuit and to direct a verdict upon the second ground urged, which was 'that the undisputed evidence shows that at the time of his death the deceased was a trespasser upon the track of the defendant company and there is no evidence of any recklessness, wantonness or willfulness on the part of the defendant, after he was discovered to be on the track, that was the proximate cause of his death.' The error being that, under the undisputed facts and law applicable thereto, the plaintiff's intestate was a trespasser upon the track of the defendant company at the time of his death; and, there being no evidence of recklessness, wantonness, or willfulness shown, after he was discovered to be on the track, his honor, therefore should have granted the motions for a nonsuit, and for the direction of a verdict.

"(3) Because his honor erred in refusing the motion for a nonsuit, and to direct a verdict upon the third ground, which was 'that there is no evidence that this was a traveled place in the legal sense, and no evidence of negligence in striking the plaintiff at a traveled place, which was the proximate cause of his death.' The error being that, the complaint having alleged that the plaintiff's intestate was walking on the track of the defendant company 'at a traveled place,' and there being no testimony in law to support such allegation, and no evidence of negligence in striking the plaintiff at a 'traveled place,' his honor should have granted said motions.

"(4) Because his honor erred in refusing the motion for a nonsuit and to direct a verdict upon the fourth ground, which was 'that, if the evidence shows that deceased was a licensee upon the track of the defendant company, then there is no evidence of any negligence on the part of the defendant company, or of a breach of any duty that the defendant owed plaintiff's intestate, if he was a licensee; there being no evidence of any lack of care on the part of the defendant company that was the proximate cause of his death.' The error being that there was no evidence of negligence on the part of the defendant company, its servants and agents, even if the plaintiff's intestate was a licensee ; but, as the testimony clearly showed, under the law, that the plaintiff's intestate could not be a licensee upon the track of the defendant company at the point where he was struck and killed, there was absolutely no evidence of any breach of duty that the defendant owed the plaintiff's intestate, as there was no evidence of any lack of care on the part of the defendant company after it discovered plaintiff's intestate on the track.

"(5) Because his honor erred in not granting the motion for a nonsuit and for direction of a verdict upon the fifth ground, which was 'that the undisputed evidence shows that the deceased was guilty of contributory negligence, which was the proximate cause of his death.' The error being that the undisputed evidence, from which no other reasonable inference can be drawn, clearly shows that plaintiff's intestate was guilty of contributory negligence as a matter of law.

"(6) Because his honor erred in charging the jury as follows: 'Now, I charge you as a matter of law that, if the public generally are permitted by a railroad company to travel on their railroad track openly, notoriously, adversely, and continuously for 20 years or more, then that makes them licensees. If the railroad company know that they are using their track and traveling over it--that is, the public generally--for 20 years or more, openly, notoriously, continuously, and adversely, against their claim, or against their exclusive right to use it themselves, and they acquiesce in that and permit it, and do not order them off, and do not prevent their doing it, then the law says the public generally acquires a right or license to travel up and down that road, to use it as a thoroughfare for the purposes of walking on it.' The Court: 'Is the law 20 or 10 years?' Mr. McDonald: 'For adverse possession? Ten years, adverse possession; 20 years, presumption of the grant.' The Court: 'If the railroad company permits the public generally to use their railroad track for a thoroughfare, people to walk on it, and use it as a passway or anything of that sort, openly, notoriously, adversely, and continuously for 10 years or more, and they acquiesced in it, and consent to it, or do not raise any row over it, and permit it, if that goes on for 10 or more years openly, notoriously, continuously, and adversely, then that gives them a permissive right or a license to use the track for that purpose. It does not mean that one man can use it for that length of time. It means the public generally, who go up and down the railroad track. The jury must be satisfied that the public generally have continuously, openly, notoriously, and adversely for 10 years or more traveled the road as a matter of right, and not as a matter of permission, and that the railroad has acquiesced in that, or that they had knowledge of it and permitted it. When that is the case, they are called licensees; that is, the public generally has a license to walk up and down the railroad track.' The error being that neither an individual nor the public, by use of a railroad track for any length of time, can acquire an adverse use thereof, so as to ripen into a right to its use, either as licensee or otherwise; and it was error in his honor to hold and charge otherwise.

"(7) Because his honor erred in charging the jury as follows: 'If in this case the railroad company was negligent and careless--that is, if the agents and servants of the company failed to observe due care and due precaution so as not to injure plaintiff's intestate in this case (that is, Carter) if Carter was a licensee (that is, the public had acquired a right to walk up and down this railroad track under the law, as I have given it to you)--and that carelessness and negligence on their part was the cause of the injury to Carter, and Carter did not, by any act of negligence or carelessness on his part, contribute to the direct and proximate cause of his injury, then, under circumstances of that sort, the plaintiff would be entitled to recover such actual damages sustained proportionate to the injury sustained.' The error being that plaintiff's intestate could not acquire a right to the use of defendant's track at the point where he was killed by adverse use or otherwise, as a matter of law; and the defendant company, its agents and servants, did not owe to him due care as a licensee, and it was error to charge the jury as above set forth.

"(8) Because his honor erred in charging the jury as follows 'Now, I charge you further, as a matter of law, that a railroad company in running its cars over its track has a right to assume, in the absence of anything to the contrary, or any proof to the contrary, that when a person is walking on its track, and they see or hear the approach of a train, or if they give the necessary signals and everything of that sort, they have a right to assume that the party walking on the track will get off the track and get out of the way of the approaching train. At the same time the law requires the engineer, the party in charge of the train, the locomotive running it, to observe due care and due precaution not to inflict injury to any person that is on the track. They must observe due care and due precaution, exercise the ordinary care, do what an ordinary prudent person would do, under similar circumstances, not to inflict any injury on any person on the track, and give the necessary signals, and they do not get off, and there is any reasonable way whereby he can stop the train and prevent the injury, and he does not observe due care and due precaution, but is careless and negligent, and does not observe due care and due precaution, and injures any one under circumstances of that sort, and the party injured does not, by any act of carelessness and negligence on his part, in any manner contribute to the direct and proximate cause of his injury, then the party injured, or the party suing for him, would have a right to recover such actual damages as sustained, proportionate to the injury sustained.' The error being that such large was confusing to the jury, inasmuch as his Honor failed to distinguish between the duty owed a licensee and a trespasser, and thus charged the jury that, even if, under the facts, the jury should find that plaintiff's intestate was a trespasser, still the defendant company would be liable if it failed to observe due care and due precaution, or failed to exercise ordinary care; whereas the law is...