Hayes v. Atl. Coast Line R. Co, No. 15236.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtSTUKES, Justice
Citation13 S.E.2d 921
PartiesHAYES. v. ATLANTIC COAST LINE R. CO. et al.
Docket NumberNo. 15236.
Decision Date26 March 1941

13 S.E.2d 921

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

No. 15236.

Supreme Court of South Carolina.

March 26, 1941.


[13 S.E.2d 921]

BAKER, J., dissenting in part, and BONHAM, C. J., dissenting.

Appeal from Common Pleas Circuit Court of Marlboro County; Philip H. Stoll, Judge.

Action by William Henry Hayes, as administrator of the estate of John Edward Hayes against Atlantic Coast Line Railroad Company and J. W. Powers, engineer, for the death of plaintiff's intestate. From a judgment granting the plaintiff a new trial, the defendants appeal.

Judgment affirmed.

Stevenson & Lindsay, of Bennettsville, and Woods & Woods, of Marion, for appellants.

T. I. Rogers and J. K. Owens, both of Bennettsville, for respondent.

STUKES, Justice.

This action was brought under Lord Campbell's Act (Code 1932, §§ 411, 412) for damages, actual and punitive, accruing to the plaintiff, the father and sole beneficiary, on account of the death of his intestate son whose mangled body was found upon and along the track of the defendant railroad company near and northeast of its Marlboro station in this state.

It was alleged in the complaint that on the Sunday afternoon of May 15, 1938, the deceased, who was twenty-two years old and lived and worked with his father on the latter's farm in the neighborhood, left the station at Marlboro walking along a beaten pathway adjacent to the railway track, which path the public had for many

[13 S.E.2d 922]

years traveled on foot, and for some reason unknown to the plaintiff, lay down upon the track, partly on the rail, and when so lying in an apparently helpless condition about a quarter mile from the station, without view impairment or obstruction to the engineer of the approaching train, was run over by the latter without warning by whistle or bell, whereby the deceased met his death from the reckless, gross and wanton negligence of the defendants in the following particulars, to wit: (1) Failure to give the signals at an intervening road crossing and particularly for the deceased after seeing him in an apparently helpless condition on the track; (2) failing to stop the train as quickly as possible after observing the latter in the said condition; and (3) failure to keep a proper lookout by which the accident would have been prevented.

The answer of the railroad company denied that the death of the decedent was caused by any negligence or wilful negligence of it or its engineer, who was also a defendant in the action, but that such resulted from the decedent's own negligence, recklessness, wilfulness and wantonness or in manner and by means unknown; that the deceased while grossly intoxicated and at about the scheduled time of the regular train lay down upon the track a short distance beyond the curve where he could not be seen by the engineer in time to stop the train before striking him, and went to sleep or was unconscious from drink, and as soon as he was visible to the engineer all reasonably available means were adopted to stop the train, but such could not be done in time to avoid running over the deceased while he was thus lying on the track. The answer further contains the plea of contributory negligence, recklessness, wilfulness and wantonness on the part of the deceased. The answer of the personal defendant, Powers, the locomotive engineer, was of like content.

In the course of the trial, the Court refused defendants' motions for nonsuit and directed verdict and in the ruling upon the latter it was said that the case would be submitted to the jury on actual and punitive damages on two of the specifications of alleged negligence only: The failure to stop the train as soon as possible after the engineer saw the decedent on the track and in not keeping a proper lookout; and such submission would be upon the theory that the decedent was a trespasser. The jury were so instructed, and they returned a general verdict for the defendants.

Thereupon, the plaintiff moved for a new trial upon several grounds, but under the order thereupon we are here concerned only with the ground therein mentioned and upon which a new trial was granted. It can best be set forth by the following quotation of the pertinent part of the order: "After full argument by attorneys for plaintiff and the defendant, I am convinced that I committed error in not submitting to the jury the question as to whether or not the decedent was a licensee, and in submitting the case to the jury on the sole proposition that he was a trespasser. I find that there was evidence upon which the jury under proper instructions could have reached the conclusion that the decedent was a licensee."

The defendants have appealed upon numerous exceptions which they state in their brief raise four questions. Numbers I and II of these questions charge error on the part of the trial Judge in the refusal of their motions for nonsuit and direction of the verdict. However, under the decisions of this Court an appeal from the refusal of such motions cannot be had until after final judgment, so the exceptions raising these questions are overruled. Ag-new v. Adams, 24 S.C. 86; Bryson v. Railway Co, 35 S.C. 608, 14 S.E. 630; Barker v. Thomas, 85 S.C. 82, 67 S.E. 1; Floyd v. Page, 124 S.C. 400, 117 S.E. 409; Parham-Thomas-McSwain v. Atlantic Life Ins. Co, 106 S.C. 211, 90 S.E. 1022; Woods v. Rock Hill Fertilizer Co, 102 S.C. 442, 86 S.E. 817; Ann.Cas.l917D, 1149.

Appellants' questions III and IV impute error to the Court in setting aside the verdict in favor of them and granting respondent's motion for a new trial because of the instruction to the jury that the decedent was a trespasser, and contend that if such instruction was error it was not prejudicial to respondent. The latter contention is patently untenable; if error, it must be held to have been prejudicial in view of the difference in the law applicable to a licensee and a trespasser, as the jury were instructed in this case.

We have carefully considered the evidence, which is set out in full in the record, and find ourselves in agreement with the conclusion of the trial Court that

[13 S.E.2d 923]

there was evidence from which the jury may have reasonably concluded that the deceased was a licensee and not a trespasser.

The rule in this state, as we understand it, gathered from an examination of many cases, is that even though the use of a pathway running alongside the railroad track was not for such length of time nor of such character as to give a legal right to so use it, and even though the evidence fell short of showing any positive consent by the company to such use, yet if there was evidence tending to show knowledge of and acquiescence in such use without protest, such evidence would tend to show that the railroad company had reason to expect the presence of persons along or on the track who were not there as bald trespassers, but whose presence at the particular place might reasonably be anticipated. Sentell v. Southern Ry, 70 S.C. 183, 49 S.E. 215; Sanders v. Southern Ry, Carolina Division, 90 S.C. 331, 73 S.E. 356; Carter v. Seaboard Air Line R. Co., 114 S.C. 517, 104 S.E. 186. See, also, Pry-or v. Atlanta-Charlotte Airline R. Co, 179 S.C. 423, 184 S.E. 137; Key v. Charleston & W. C. R. Co, 144 S.C. 164, 142 S.E. 336; Sharpe v. Southern R. Co, 125 S.C. 478, 119 S.E. 245; and Annotation, 120 A.L.R. 1076.

A review of the foregoing cases, and many others, shows that our Court, along with a majority of the Courts of other jurisdictions, has adopted what might be termed a liberal view, to the effect that a railroad does or may owe a duty to anticipate the presence of persons along or crossing its tracks at a well-defined pathway at a place in which it has acquiesced in a somewhat general use thereof (not amounting to a legally established public use), or where the circumstances have been such that the presence of persons on or along the tracks at that particular place may reasonably be expected.

In accordance with this rule, the relation to the railroad company of one injured at such place, is not necessarily that of a naked trespasser, but his status may be that of a licensee, and as such it would be the duty of the railroad company to exercise ordinary care so as to prevent injury to him.

The testimony in the case at bar permitted the inference that for more than twenty years the railroad company had acquiesced in the use of the foot path in question by pedestrians. There is also testimony tending to show that this path was near the Marlboro...

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7 practice notes
  • Jones v. Atlanta-Charlotte Air Line Ry. Co., ATLANTA-CHARLOTTE
    • United States
    • United States State Supreme Court of South Carolina
    • February 15, 1951
    ...61, 81 S.E. 306; Webb v. Atlantic Coast Line Ry. Co., 105 S.C. 300, 89 S.E. 546; and Hayes v. Atlantic Coast Line Ry. Co., 196 S.C. 386, 13 S.E.2d 921. The last of these, the Hayes case, was cited and quoted with approval in Nettles v. Southern Ry. Co., 211 S.C. 187, 44 S.E.2d 321, which is......
  • Britt v. Seaboard Coast Line Railroad Company, Civ. A. No. CA/67-460.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • March 12, 1968
    ...lying prone upon said track adjacent to a path." To the same effect: Hayes v. Atlantic Coast Line R. Co. et al. (1941) 196 S.C. 386, 392, 13 S.E.2d 921; Jones v. Atlanta-C. Air Line R. Co. et al. (1951) 218 S.C. 537, 548, 63 S.E.2d 476, 26 A.L.R.2d 297. This conclusion that the deceased's s......
  • Nettles v. Southern Ry. Co, No. 15990.
    • United States
    • United States State Supreme Court of South Carolina
    • September 24, 1947
    ...S.C. 183, 49 S.E. 215; Sanders v. Southern Railway Co., 90 S.C. 331, 73 S.E. 356; Hayes v. Atlantic Coast Line Railway Co., 196 S.C. 386, 13 S.E.2d 921, 923. It was stated in the Hayes case that this "Court, along with a majority of the Courts of other jurisdictions, has adopted what might ......
  • Walker v. Atlanta & Charlotte Air Line Ry. Co, No. 15953.
    • United States
    • United States State Supreme Court of South Carolina
    • May 30, 1947
    ...a Charleston accident; the last relating to injury to a pedestrian-licensee appears to be Hayes v. Atlantic C. L. R. Co., 196 S.C. 386, 13 S.E.2d 921. Appellants pitch their argument anent contributory negligence upon the premise that the verdict of the jury for actual damages alone has abs......
  • Request a trial to view additional results
7 cases
  • Jones v. Atlanta-Charlotte Air Line Ry. Co., ATLANTA-CHARLOTTE
    • United States
    • United States State Supreme Court of South Carolina
    • February 15, 1951
    ...61, 81 S.E. 306; Webb v. Atlantic Coast Line Ry. Co., 105 S.C. 300, 89 S.E. 546; and Hayes v. Atlantic Coast Line Ry. Co., 196 S.C. 386, 13 S.E.2d 921. The last of these, the Hayes case, was cited and quoted with approval in Nettles v. Southern Ry. Co., 211 S.C. 187, 44 S.E.2d 321, which is......
  • Britt v. Seaboard Coast Line Railroad Company, Civ. A. No. CA/67-460.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • March 12, 1968
    ...lying prone upon said track adjacent to a path." To the same effect: Hayes v. Atlantic Coast Line R. Co. et al. (1941) 196 S.C. 386, 392, 13 S.E.2d 921; Jones v. Atlanta-C. Air Line R. Co. et al. (1951) 218 S.C. 537, 548, 63 S.E.2d 476, 26 A.L.R.2d 297. This conclusion that the deceased's s......
  • Nettles v. Southern Ry. Co, No. 15990.
    • United States
    • United States State Supreme Court of South Carolina
    • September 24, 1947
    ...S.C. 183, 49 S.E. 215; Sanders v. Southern Railway Co., 90 S.C. 331, 73 S.E. 356; Hayes v. Atlantic Coast Line Railway Co., 196 S.C. 386, 13 S.E.2d 921, 923. It was stated in the Hayes case that this "Court, along with a majority of the Courts of other jurisdictions, has adopted what might ......
  • Walker v. Atlanta & Charlotte Air Line Ry. Co, No. 15953.
    • United States
    • United States State Supreme Court of South Carolina
    • May 30, 1947
    ...a Charleston accident; the last relating to injury to a pedestrian-licensee appears to be Hayes v. Atlantic C. L. R. Co., 196 S.C. 386, 13 S.E.2d 921. Appellants pitch their argument anent contributory negligence upon the premise that the verdict of the jury for actual damages alone has abs......
  • Request a trial to view additional results

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