Hill v. Port Royal & W.C.R. Co.

• Decision Date: 16 October 1889
• Parties: HILL v. PORT ROYAL & W. C. RY. CO.
• Court: South Carolina Supreme Court

10 S.E. 91

31 S.C. 393

HILL v. PORT ROYAL & W. C. RY. CO.

Supreme Court of South Carolina

October 16, 1889

Appeal from common pleas circuit court of Laurens county; HUDSON Judge.

Benet & McGowan, for appellant.

Jos Ganall and H. Y. Simpson, for respondent.

McGOWAN J.

This was an action by the plaintiff against the defendant corporation, claiming damages for a personal injury received by the plaintiff by coming in contact with the timbers of defendant's trestle, near Badgett's mill, in Laurens county. The complaint alleged "that the defendant corporation, in building and maintaining its road-bed across the public highway at Badgett's mill, in Laurens county so wrongfully and negligently built and maintains the trestle of its road over and across said highway at said place, by reason of the narrowness of the passage, the great obliquity to the public highway, the close proximity of said passage to the steep grade of said highway, and the want of repair of said crossing, that the said crossing was and is extremely dangerous to the traveling public. *** That in consequence of the defendant's negligence in regard to said crossing, the buggy of the plaintiff, in which he was riding along said highway, on September 26, 1887, at said crossing, was dashed against the timbers of the defendant's trestle at the side of the narrow passage of said crossing, without fault of the plaintiff, and was thereby broken and overturned, by means of which the plaintiff received great bodily injuries and a broken leg and other wrongs and injuries, to his damage, ten thousand dollars," etc. The defendant corporation answered, denying that it had been guilty of "any negligence in building and maintaining its road-bed at the place designated in the complaint, or in failing to make repairs of the crossing at said place, and denying that the passage of said crossing has been made, or is, by any acts of negligence of the defendant, dangerous to the traveling public," etc. The cause came on for trial before Judge HUDSON and a jury. There was much testimony, all printed in the brief, which as well as we can summarize it, was substantially as follows: The trestle in question was constructed in the year 1884, and, at that time, what was spoken of in the testimony as the "old road," the "old route" and the "straight road," was the acknowledged highway. The trestle crossed this highway nearly at right angles, the benches at the crossing being 11 feet apart. This road under the trestle was very bad, rocky, and hard to keep in repair; but it was worked by the county road-hands until 1886,--two years after the construction of the trestle. In the year named (1886) the overseer of the road, by the authority of the supervisor of roads, and with the consent of Mr. Badgett, (who owned a mill on the stream just above the trestle,) opened a new public road over Mr. Badgett's land, which left the old road at a point some distance from the trestle on the side towards Laurens. This new road crossed under the trestle at a different point from that where the old road crossed. It approached the trestle down a hill, and at an oblique angle, and crossed under it by an abrupt turn. The public generally used the new road, and the road-hands worked it; but it did not appear that the crossing of the old road had been formally closed, or that the new road had been made at the instance of, or upon notice to, the defendant corporation. On the evening of September 26, 1887, the plaintiff and a companion in a buggy, were on their way home, traveling "down the new cut road," and when they were within 65 or 70 yards of the trestle, the mule drawing the buggy got into and continued in a very fast trot down the hill, and in making the sharp turn under the trestle, the buggy was dashed against the timbers of the trestle, was turned over, and the plaintiff's leg was broken, inflicting a very severe injury upon him. Upon the close of the plaintiff's testimony, the defendant corporation moved for a nonsuit, which the judge granted, saying, among other things: "So that the plaintiff, in my opinion, has certainly failed to show that the railroad company, by negligence, caused this accident. There is nothing in that point to go to the jury," etc. From this order of nonsuit the plaintiff appealed upon the following grounds: "(1) Because his honor erred in finding that the plaintiff has entirely failed to show that the railroad company caused the accident. (2) That he erred in finding that there was no evidence whatever...