Darwin v. Charlotte, C. & A.R. Co.

• Citation: 23 S.C. 531
• Parties: DARWIN v. CHARLOTTE, COLUMBIA & AUGUSTA R. R. CO.
• Decision Date: 02 November 1885
• Court: South Carolina Supreme Court

23 S.C. 531

DARWIN v. CHARLOTTE, COLUMBIA & AUGUSTA R. R. CO.

Supreme Court of South Carolina.

November 2, 1885

1. While a railroad company cannot be said to owe no duty to one who unlawfully intrudes himself upon its engines or cars, it does not owe to him the same duty that it owes to a passenger, or even to one of its employees.

2. If a stranger takes his seat upon the pilot of the engine of a construction train, in sight of the engineer, and in that position is killed by a collision with a car upon the track this would show no negligence by the company; and action for damages being brought by the administrator of the deceased against the company, a non-suit should be granted.

3. The proof by plaintiff of gross contributory negligence on his part does not authorize a non-suit; contributory negligence is a matter of defence, and presents a question of fact to be solved by a jury.

4. When a trespasser places himself upon the pilot of an engine, and is permitted by the engineer, in violation of the rules of the railroad company, to remain there, and is killed, the company is not liable.

5. Where a trespasser gets, without authority, upon the most dangerous place on a railroad engine and is killed, he is guilty of contributory negligence, and no recovery of damages for his death can be obtained against the company, even if the company had been guilty of negligence, and although the engineer knew the person was in such place of danger and did not warn him off. In the case of a passenger, the rule would be different.

6. Contributory negligence ceases to be a defence only where the injury complained of is shown to have been done wilfully or purposely, or is the result of such gross negligence as would imply wantonness or recklessness.

MR CHIEF JUSTICE SIMPSON and MR. JUSTICE MCGOWAN concurred in the result.

Before COTHRAN, J., York, November, 1884.

This was an action by John A. Darwin, as administrator of Peyton A. Darwin, who was a boy of seventeen years of age at the time of his death on the leased road of the defendant company. The opinion fully states the case.

Mr. J. H. Rion , for appellant.

Mr. W. B. Wilson , contra, cited 19 Ill. 499; Shear. & Redf. Negl. , §§ 35, 36, 65, 79; 4 Ind. , 97; 10 Mees. & W. , 546; 16 Conn. , 421; 11 East. , 60; 9 Ind. , 399; 6 Id. , 416; 2 Duv. (Ky. ), 114; 3 Ohio St. , 195; 18 N. Y. , 259; 95 U.S. 441; 3 Allen , 178; 20 N. Y. , 430; 44 Penn. , 376; 4 Exch. , 244; 5 N. Y. , 48; 8 Id. , 222; 11 Id. , 432.

OPINION

MR JUSTICE MCIVER.

On June 27, 1884, the plaintiff's intestate was killed on the Chester & Lenoir Narrow Gauge Railroad under the following circumstances, and this action is brought by the plaintiff, as his administrator, against the defendant company, lessees of said railroad, to recover damages occasioned by such killing. The engineer in charge of a construction train uncoupled his engine from the train to which it was attached and went down the road for a supply of water, the deceased going with him on the engine. Returning, Darwin was riding on the pilot of the engine, and when it reached the cars it collided with them and Darwin was crushed between the engine and the cars, causing his immediate death.

There was some testimony tending to show that at the time of the collision the engine was running faster than usual when coupling; and a railroad engineer who was examined as a witness testified that the speed of the locomotive at the time of the collision must have been at least four miles an hour, too fast for approaching a train of cars for coupling. The engine was in good order, and when examined, immediately after the accident, the brakes were found to be wound up tight. The pilot is the most dangerous place for one to ride on, and one of the printed rules of the company, put in the hands of every engineer on the road, was that the engineer should not allow any one, except the fireman or road master, to ride on the engine under penalty of discharge. There was no positive testimony that the engineer knew that Darwin was on the engine at the time of the accident, though two colored women standing on the side of the track opposite the point where the collision took place testified that the engineer could have seen him. This is a very brief statement of the testimony, which is set out in full in the record.

On the close of the testimony for the plaintiff, the defendant's counsel moved for a non-suit upon two grounds. 1. Because " there was no sufficient proof of any negligence" on the part of the company. 2. Because " the undisputed proof of the plaintiff established beyond a reasonable doubt that the deceased had been guilty of gross contributory negligence." The motion was refused, and the defendant offering no testimony, the case went to the jury.

The defendant, amongst other things, requested the judge to charge " that if the jury find that the engineer was violating the rules of the defendant in allowing the deceased to ride upon the pilot of the engine, then the defendant is not liable for the killing." This request was refused, " because there was a neglect of duty upon the part of the defendant shown; for it was the duty of the company to employ engineers who are faithful in the discharge of duty." The next request was " that the defendant is not liable for the result of the unauthorized act of the engineer, done against its rules, and resulting from the voluntary act of the one killed." This request was also refused, for the same reason as that given above.

The judge was next requested to charge " that even if the jury are satisfied that in this case the defendant is responsible for the acts of the engineer, and the engineer was guilty of great negligence and want of care, yet the plaintiff cannot recover if the deceased was also guilty of contributory negligence; that is to say, that he did not observe proper care under the circumstances." To this request the Circuit Judge responded as follows: " This, gentlemen, brings in the exception under which this case comes to you, and on account of which I refused the non-suit asked. If the defendant, by its agent, knew that this young man was there, and did not take proper care not to injure him, then the defendant is responsible for the result."

The last request was in these words: " That if the deceased failed to observe proper care under the circumstances, the plaintiff cannot recover." To which the judge responded as follows: " I refuse this for the same reason as the last request to charge. If deceased was in a place of danger, and the agent allowed him to remain there, and by carelessness ran into the cars and killed deceased, then the company is liable. *** Suppose you come to the conclusion that the engineer, not using due care and proper caution, knowing that the young man was in that place of danger, and by his neglect and want of proper caution caused the death, then the company is liable. It was the duty of the agent, seeing him in that place of danger, to warn him off; and seeing he did not get off, to use such care and caution in the management of his engine so as not, if practicable, to injure the lad. If he failed so to do, the company is liable. In the Jones Case , which you heard read from Otto, the point is this, that the engineer did not know, as the agent did in this case, that the cars were on the track in the tunnel, forming the obstruction."

The jury having rendered a verdict for the plaintiff, defendant appeals, alleging error in refusing the motion for non-suit upon both of the grounds taken, and in refusing the requests to charge as above stated.

It is essential to bear in mind, throughout the consideration of this appeal, that this is not the case of a passenger, or even of an employee, who is understood to assume the risks incident to his employment, who has been injured on defendant's railroad; but it is a case of a bald trespasser who, without lawful authority, intruded himself upon defendant's engine, and was there injured. It must be manifest that a railroad company does not owe the same duty to a trespasser that it does to a passenger or one of its employees, though we do not go to the extent of holding, as some of the cases (Duff v. Alleghany R. R. Co. , 91 Penn. St. , 458; S. C. 36 Am. Rep. , 675; and Canley v. Pittsburgh, Cincinnati & St. Louis Railway Company , 95 Penn. St. , 398; S. C. 40 Am. Rep. , 664) seem to do, that a railroad company owes no duty to one who trespasses upon its tracks or unlawfully intrudes himself upon its engines or cars. No one can safely disregard the ordinary instincts of humanity and shield himself from responsibility for an injury done, even to a trespasser, by its wanton or reckless disregard of such instincts.

So far as we are informed, there is no case in this State which defines the measure of duty which a railroad company owes to one who unlawfully intrudes upon its engines or cars. The nearest approach to it is the case of Carter v C. & G. R. R. Co. (19 S.C. 20), in which the action was brought to recover damages for an injury sustained by a trespasser upon the track of the defendant company. In that case, the court, in speaking of one of the requests to charge, used this language: " So, too, although the second part of the request may have been good technical law, to wit, ‘ that if the deceased was upon the track of the defendant without lawful authority, and using it for his own convenience, he was a trespasser, and the company were under no obligation to take precautions against possible injuries to trespassers,’ yet this principle could not have shielded the defendant from such injury as may have been produced by its negligence, if any, in every case without exception. It would, no doubt, require a much...