Fowles v. Seaboard Air Line Ry.
| Decision Date | 26 February 1906 |
| Citation | 53 S.E. 534,73 S.C. 306 |
| Parties | FOWLES v. SEABOARD AIR LINE RY. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Richland County; Gary Judge.
Action by J. J. Fowles against the Seaboard Air Line Railway. From a judgment affirming a judgment of magistrate, defendant appeals. Reversed.
Lyles & McMahan, for appellant. Jas. H. Fowles, Jr., for respondent.
The plaintiff recovered judgment in the court of Magistrate Robert Moorman for $75, the alleged value of a Red Bone fox hound killed by the defendant's train of cars. The judgment of the circuit court affirming the judgment of the magistrate must be reversed on the ground that there was no evidence of negligence. The proof was that the dog was killed by the train while trailing around the track near the public crossing. The act of the defendant alleged to be negligent and on which, as stated by the magistrate, the judgment was based, was that the defendant's train "gave no warning such as is usually given when animals are on the track, and that this was negligence inasmuch as the engineman had ample time to see the dog ahead of him." No witness saw the dog when he was killed, and there is nothing to indicate whether he was on the track long enough for the engineman to see him and sound the whistle, or ran on the track the instant he was killed. The person who had him in charge, and who knew of the approach of the train had no right to rely upon the statutory signals required at a crossing, as the dog was not in the attitude of one intending to cross, but merely happened to be hunting near by. Neely v. Railroad Co., 33 S.C. 136 11 S.E. 636; Kinard v. Railroad Co., 39 S.C. 514, 18 S.E. 119; Sims v. Railway Co., 59 S.C. 246, 37 S.E 836. The rule in Danner's Case, 4 Rich. Law, 329, 55 Am Dec. 678, does not apply to the killing of a dog by a railroad train and there is no presumption of negligence from the fact of killing. Wilson v. Railroad Co., 10 Rich. Law, 52; Richardson v. Railroad Co., 55 S.C. 334, 33 S.E. 466. The dog's intelligence, the rapidity and agility with which he moves, warrant those in charge of a train in acting upon the supposition that he will observe its approach, and get out of its way. In this respect it is reasonable to place him on somewhat the same footing as a human being when in the possession of all his faculties and capable of seeing the danger and escaping from it. If the dog...
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