Griffith v. Atlantic Coast Line R. Co.

• Decision Date: 09 April 1909
• Parties: GRIFFITH et al. v. ATLANTIC COAST LINE R. CO.
• Court: South Carolina Supreme Court

64 S.E. 222

82 S.C. 252

GRIFFITH et al. v. ATLANTIC COAST LINE R. CO.

Supreme Court of South Carolina

April 9, 1909

Appeal from Common Pleas Circuit Court of Charleston County; R. W Memminger, Judge.

Action by John W. Griffith and another, copartners, under the firm name of "J. W. Griffith & Bro.," against the Atlantic Coast Line Railroad Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

St Julien Grimke and Legare, Holman & Baker, for appellants.

T. M Mordecai, for respondent.

WOODS J.

The plaintiffs, who were contractors engaged in the construction of the Charleston & Summerville Railroad, used in their work 34 mules, which at night were kept in one inclosure. On the night of April 24, 1906, the mules broke one of the bars of the inclosure, and 4 of them strayed on defendant's railroad track, where they were killed between 5 and 6 o'clock in the morning by a passenger train. This action was brought to recover damages for the loss. The defenses set up were: First, that defendant's agents in charge of the train exercised due care in the running of it, but a dense fog made it impossible for them to see the mules, and that the accident was unavoidable on their part; and, second, that the loss of the mules was the result of plaintiffs' contributory negligence in keeping the mules in a small and insecure inclosure. On the trial of the issues thus made, the jury found a verdict for the defendant. The plaintiffs appeal, assigning several errors in the charge to the jury.

There is no foundation for the exception alleging error on the part of the circuit judge in assuming that the train was running in a fog. The charge on this subject went no further than a statement that the General Assembly had not laid down by statute a rule as to any rate of speed or other precautions that a railroad company should take to avoid accidents while in a fog, and that the jury must decide what would be due care in running a train under all the conditions, such as the presence of darkness or fog. The charge on this subject was rather favorable to the plaintiff than otherwise, for it emphasized the necessity of caution by the defendant of running in darkness or fog.

The second exception alleges error in the instruction: "That where the stock law is in force the defendant is not required to use the same care and caution as in localities where such law is not in force." The law which requires the fencing of live stock was in force at the place where the mules were...