Irby v. Southern Ry. Co.

Decision Date26 September 1912
Citation75 S.E. 793,92 S.C. 490
PartiesIRBY v. SOUTHERN RY. CO. et al.
CourtSouth Carolina Supreme Court

Appeal from Common Pleas Circuit Court of Richland County; John S Wilson, Judge.

Action by Amanda Irby against the Southern Railway Company and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded for new trial.

E. M Thomson, of Columbia, for appellants. W. Boyd Evans and Hunter A. Gibbes, both of Columbia, for respondent.

FRASER J.

This was an action for damages brought by the plaintiff-respondent against the defendants-appellants for personal injuries received by the plaintiff at a public street crossing in the city of Columbia. It seems that at the place of the injury several railroad tracks cross the street quite near each other. Some of these tracks belong to the Columbia Newberry & Laurens Railroad and some to the defendant company. When the plaintiff arrived, she found the street blocked by a passing train on the Columbia, Newberry & Laurens road having crossed the track of the defendant company. She waited for the passing train to go by. While standing between the tracks, she saw some acquaintances on the train, and waved to them. Her attention was engrossed with her greetings, and as she waved she went backwards upon the track of the defendant company, and did not see a lever car that was approaching the crossing on the track of the defendant company in charge of its codefendant, Davis. The defendant Davis and those on the lever car with him saw the plaintiff while the lever car was some distance away, and saw her backing towards the track before she was struck. Those on the lever car called out to the plaintiff, but she did not hear or heed the warning. One of the employés on the lever car pushed her away from in front of the car, but in some way she was struck by the side of the car, or the back wheel caught her clothing, and she was thrown down and injured.

Judgment was rendered for the plaintiff for $200, and the defendants appealed upon the following exceptions:

1. "(1) Because the court erred in permitting the witness James Rutherford to testify as follows: 'Q. How wide was the opening here? A. About 20 feet. Q. And blocked up on both sides? A. Yes, sir. Q. It was blocked up that afternoon? A. Yes, sir. Q. What about the cars? A. The Shand lumber yard runs here, is a line fence running along here, passed that line fence in the corner here one box car a few links over into the street. Q. How much opening was here? A. About 20 feet. Q. Twenty feet wide? A. Yes, sir; 20 feet wide.' The error being that there was no allegation in the complaint charging the defendants or either of them with blocking the crossings in question, nor with negligence, recklessness, or willfulness in so blocking the street, and the testimony, therefore, referred to no issue involved, and was irrelevant and incompetent.

"(2) Because the court erred in allowing this witness and other witnesses to testify as to the crossing in question being blocked by cars placed by the defendants when there was no allegation in the complaint charging negligence in this regard, and no such issue was made by the pleadings. Hence the testimony was irrelevant and incompetent."

Those exceptions cannot be sustained. The jury were entitled to know the surroundings in order to ascertain whether a given rate of speed was negligent or not. One may with due care travel at a rate in an open country where the view is unobstructed, and yet, if he should pass an obstruction or go round a curve in the road at the same speed, he might endanger himself and others and be guilty of negligence.

2. (3) Because the court erred in admitting in evidence sections 516 and 518 of the Ordinances of the City of Columbia with respect to blocking street crossings, as follows:

"'Sec. 516. It shall be unlawful for any railroad train, engine, car or part of a railroad train, to be stopped at the crossing of any street in the city of Columbia, or to be permitted to remain stopped at any crossing of any street of the city, under a penalty of not less than ten dollars nor more than forty dollars for each and every offense, to be recovered before the recorder, evidence being given that this section is violated. Provided, a summons is served on the agent, president, secretary or treasurer of said company so violating.
"'Sec. 518. It shall be unlawful for any railroad train, engine, or any portion of a railroad train, to pass any street crossing in the city at a rate of speed greater than four miles
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