Haltiwanger v. Columbia, N. & L.R. Co.

• Decision Date: 27 February 1902
• Parties: HALTIWANGER v. COLUMBIA, N. & L. R. CO.
• Court: South Carolina Supreme Court

41 S.E. 810

64 S.C. 7

HALTIWANGER v. COLUMBIA, N. & L. R. CO.

Supreme Court of South Carolina

February 27, 1902

Appeal from common pleas circuit court of Lexington; Aldrich, Judge.

Action by Elizabeth Haltiwanger against the Columbia, Newberry & Laurens Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

The charge is as follows:

"Mr. Foreman and Gentlemen of the Jury The plaintiff, by her complaint, which has been read in your presence, seeks to recover, for the reason therein stated, the sum of $7,000 damages from the defendant railroad company. I need not read over this complaint to you again. The defendant in its answer denies--First, that the plaintiff is administratrix, as alleged; and, second, denies each and every allegation in the complaint. The defendant is a railway corporation. A corporation is created by law, and in this state a corporation is such by reason of the laws of South Carolina passed for the purpose of creating such corporations; and if that be so, as it is, a corporation is a legal body, has all the rights, privileges, and immunities given to it by its charter, and has the right to exercise the same. Among other rights given to it or permitted to it is the construction of a track, and the operation of engines and cars along that railroad track. Ordinarily speaking, that track is set apart by the laws of this state for the exclusive use of the railway company, for the passage of its engines and cars; and the exceptions, where others have the right to the use of that track, must arise under the law, and, where they have a right to the use of any part of the track, they must derive that right from some legal source. In passing upon the cause of litigation between the railroad company and the individual, you would give each the benefit of the law according to which each, respectively, has its right under the law, and deprive neither of its rights.

I shall endeavor to give you the law of this case as I think the law is applicable to it. I am responsible for that. It is your duty to take the law from the court, to weigh the testimony, pass upon the testimony, and to find a verdict according to that testimony which you have heard from the witnesses, and the law as the court shall give it to you. There are a great many requests to charge in this case, and I will save time if, in connection with these requests to charge, I state my views as to the law of the case:

'That if plaintiff was guilty of negligence to such a degree that it was the proximate and immediate cause of the injury, he could not recover, even if defendant was negligent; that, on the other hand, if defendant was guilty of such negligence as was the proximate and immediate cause of the injury, plaintiff is entitled to recover, though he was guilty of negligence, provided his negligence was not a proximate and immediate cause of the injury; and that if plaintiff was guilty of negligence which was not the proximate cause, and such cause was the failure of defendant to exercise reasonable care and prudence to avoid the injury plaintiff would be entitled to recover.' That is correct, and I so charge you. Now this word 'proximate' means the primary cause, or that which produces the injury.

'Where persons have long been accustomed to use a railroad track, at a certain place, and the company knew that persons were likely to be on the track at such place, it is the duty of the company, in operating its trains, to use more care at such place than at other places along its road, where it had no reason to believe that persons were likely to be on its track.' Gentlemen, there are several requests along that line, which I will take up in connection with that, to prevent repetition. 'The duty of a railroad company is governed by the general principles of law that every one is obliged, upon consideration of humanity and justice, to conform his conduct to the rights of others, and in the prosecution of his lawful business to use every reasonable precaution to avoid their injury.' That is correct, and I so charge you. 'That railroad engineers should observe more caution in running trains at places where they know that persons are likely to be on the track than elsewhere, even if those persons are trespassers, and a trespasser upon the track of a railroad is entitled to be protected from gross negligence.' That is correct. They have a right to be protected from gross negligence. 'That a wrongdoer is not necessarily an outlaw as to his property still less as to his person, and a railroad company has no right to inflict wanton injury on persons who are unlawfully upon its track.' That is correct, and I so charge you.

'When, in action to recover damages for personal injuries, the defense of contributory negligence is relied on, the defendant is liable, although the plaintiff's negligence essentially co-operated to produce the injury, when it could have been averted by the exercise of reasonable care and ordinary prudence on the part of the defendant or his servants after discovering, or after time when they ought to have discovered, the danger in which the party injured stood.' That is correct. It seems to be taken from the text-books.

'Where a person on a railroad track is killed by defendant's train, defendant is liable if the injury could have been avoided by the use of ordinary means at command by those in charge of the train after deceased was seen by them to be in danger from the train.' That is correct, and I so charge you. The fourth request is stricken out.

'Where an engineer, by keeping a reasonable and careful lookout, could have discovered a man who was apparently on or so near the rail of the track as to expose him to danger from the engine as it passed, and could by the use of the appliances at his command, and without peril to those on the train, have stopped the train in time to have avoided such injury to such man, and failed to do so, the railway company was guilty of negligence, and liable for the death of such man, notwithstanding his contributory negligence.' That, gentlemen, is correct, with certain limitations and explanations that I will give you later on, in which I will speak further as to the duties of an engineer.

'That if the jury find that the plaintiff was killed at a place on the track of the defendant company where persons were in the habit of walking, that the deceased was on said track, and that the trainmen either saw, or by the exercise of ordinary care could have seen, him in time to avert the danger, and failed to exercise that care, then the defendant is liable.' That, also, with the explanation I will give you further on, I charge you.

The defendant's second request is as follows: 'That gross negligence is the doing of something to another person, or the failure to do something for him, in a manner that indicates utter indifference to his rights.' That is correct. I so charge you.

'That wantonness is the intentional doing of something or failure to do something to suit one's own whim or will, regardless of the rights of others, when the party knows, or is under legal obligation to know, that the doing or failing to do such act might cause injury to other persons.' That is correct. I so charge you. And I further charge you that negligence is the want of ordinary care, and that the absence of ordinary care means negligence. This plaintiff alleges in her complaint that her intestate is dead, and was killed by the railroad train or the engine. That allegation alone would not support a cause of action. Therefore it becomes essential to see what is the real cause she bases her action upon, and we turn to the complaint. It is based upon this allegation by the plaintiff: 'That the defendant negligently, recklessly, unlawfully, and wantonly caused said locomotive and train of cars to rapidly approach said intestate, J. H. Haltiwanger, and strike him, injure him, kill him,' and so on. Therefore plaintiff, to recover, must sustain these allegations by proper proof. Having alleged that her intestate is dead, and that his death was occasioned by negligence, recklessness, unlawfulness, and wantonness of the defendant company, it is incumbent upon her to prove that; and, if she fails to prove it by the preponderance of the testimony, then her cause of action fails.

The fourth request is: 'That this action being based upon an allegation of gross negligence and wantonness, which is denied in the answer, it can only be maintained by proof that the alleged injury to the deceased was caused by the grossly negligent or wanton conduct of the engineer or other agent of the company in the running of the train, after he knew, or was under legal obligations to know, that deceased was on defendant's track, and in a position

of danger.' That I have to modify in this particular: That this action is based upon an allegation of gross negligence and wantonness, because, as I have charged you, in the allegation it is based also upon negligence. And just here I may as well say that, for plaintiff to make out her case, she must, by the preponderance of the testimony, show that her intestate was killed; that the death was occasioned by the negligence, recklessness, unlawfulness, and wanton conduct of the defendant. A railroad engineer is presumed to exercise ordinary care, and, in the absence of ordinary care, he is expected to do that which engineers who are properly suited to their employment usually exercise in the discharge of the duties of their offices as engineers. And I have defined to you what gross negligence is, and they, in discharging their duties, must not be guilty of gross negligence or wantonness.

The defendant's fifth request is: 'That the complaint in this action does not allege a legal right in the public

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