Jones v. Charleston & W.C. Ry. Co.

• Decision Date: 27 February 1903
• Parties: JONES v. CHARLESTON & W. C. RY. CO.
• Court: South Carolina Supreme Court

43 S.E. 884

65 S.C. 410

JONES v. CHARLESTON & W. C. RY. CO.

Supreme Court of South Carolina

February 27, 1903

Appeal from Common Pleas Circuit Court of Anderson County; Watts Judge.

Action by James L. Jones against the Charleston & Western Carolina Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed jury rendered a verdict in favor of the plaintiff for $1,400. The defendant appeals upon the following exceptions:

"(1) Because the presiding judge erred in allowing the introduction of testimony of James L. Jones, P. K. McCully W. T. McGill, J. L. Farmer, J. M. Patterson, M. Kennedy, E D. Kay, W. L. Brissey, John A. Hays, and Sam. O. Jackson, tending to show that they had seen persons walking up and down the tracks of the defendant company, when, as it is respectfully submitted, the testimony was incompetent, and should not have been introduced for the following reasons: (a) Such testimony was not admissible, and had no relevancy to the case then on trial, unless it had previously been shown that such use of the defendant's track was with the knowledge and consent of the railroad company. (b) Because such evidence would not even then be competent unless it was first shown that any officer or agent of defendant consenting to such use of defendant's tracks had authority to give such consent.

(2) Because the presiding judge erred in allowing to be introduced in evidence an ordinance of the city of Anderson regulating the speed of trains within the city limits; the error of such ruling being: (a) Because the accident did not occur at a street or railway crossing, but occurred upon a trestle one hundred to one hundred and fifty yards away; and therefore its introduction had no relevancy to the case on trial, and was prejudicial to the defendant. (b) Because the ordinance in question is a penal ordinance, providing for the punishment of agents of railway companies who fail to observe its requirements, and not directed against the railroad company, and that it had no relation whatever to the issues in this case, and its introduction was, therefore, improper and prejudicial to the defendant. (c) First. Because there was no evidence of the rate of speed at which defendant's train crossed the street [Reed street] about 100 yards from the place where the accident occurred, and its introduction was, therefore, improper, and prejudicial to the defendant. Second. Because the rate of speed prescribed in said ordinance is an unreasonable one, which the defendant had a right to disregard.

(3) Because the presiding judge erred in charging the jury as follows: 'If you believe from the evidence that the deceased was at the time of the accident walking along the track of the defendant company at a place where the said track had long been used by the public as a walkway with the knowledge and acquiescence of the railway company, then the deceased was not upon the track as a trespasser, but as a licensee;' and again in these words: 'The jury must be satisfied to make out a licensee that that place had for a long time been used as a walkway with the knowledge and acquiescence of the railway company, and, if she was on that track under such circumstances, then she would be a licensee, and not a trespasser,'--the error being that the presiding judge instructed the jury, in effect, that mere knowledge and acquiescence or failure to object to such use of the defendant's tracks was sufficient to make persons using such tracks licensees, when we submit under the law that they would be and are trespassers, unless they have the positive consent of some officer of the railway company authorized to give the same to so use such tracks.

(4) Because the presiding judge erred in charging the jury, as requested by plaintiff's counsel in their third request to charge, as follows: 'If the jury believe from the evidence that the deceased was at the time of the accident walking along the track of the defendant company at a place where the said track had long been used by the public as a walkway with the knowledge and acquiescence of the railway company, then the deceased was not upon the track as a trespasser, but as a licensee'--the error being in instructing the jury, in effect, that mere knowledge and acquiescence by the railway company in such use of its tracks would constitute persons so using the defendant's tracks licensees, when we submit that such person would be and are trespassers thereon.

(5) Because the presiding judge erred in charging the jury, as requested by plaintiff's counsel in their eighth request to charge, as follows: 'That if the jury should find from the evidence that the defendant ran its train at a greater speed than the ordinance of the city of Anderson permitted or that it failed to ring its bell as required by said ordinance, and if the injury complained of resulted from such violation, then they may consider such acts as circumstances from which they may infer negligence on the part of the defendant'--the error being that the ordinance in question had no relation to, and could not properly affect the question of, defendant's negligence in this case, as the admitted testimony was that the injury did not occur at any street crossing in the city of Anderson.

(6) Because his honor erred in refusing the motion for a new trial, made upon the following ground: 'Because the uncontradicted evidence shows that the deceased, Mrs. Susan V. Jones, was a trespasser when injured, and therefore the defendant company only owed her the duty not to do her wanton or willful injury, and, there being no evidence of any such wantonness or willfulness, the verdict should have been for the defendant'--such refusal on this ground being, under the facts and circumstances of this case, error of law.

(7) Because his honor erred in refusing the motion for a new trial made upon the following grounds: 'Because the uncontradicted evidence shows that the deceased, Mrs. Jones, was guilty of negligence, which was one of the proximate causes of her injury; and, if the defendant was also negligent, still the deceased was guilty of contributory negligence, and therefore the verdict should have been for the defendant'--said refusal on this ground being, under the facts and circumstances of this case, error of law.

(8) Because his honor erred in refusing the motion for a new trial made upon the following ground: 'Because the great weight of the evidence shows that the defendant was not guilty of any negligence which proximately caused the injury of the deceased, and therefore the verdict should have been for the defendant'--such refusal on this ground being, under the facts and circumstances of this case, error of law."

S. J. Simpson, Breazeale & Rucker, and B. F. Whitner, for appellant. Bonham & Watkins and Quattlebaum & Cochrane, for respondent.

GARY A. J.

The exceptions will be considered in their regular order.

First Exception. When the testimony mentioned in this exception was offered, the defendant's attorney objected "on the ground that the sole purpose of this testimony can be to prove (if they can prove it) that people who walked over this track are licensees, and, before they can be licensees, permission must have been given by somebody, and, if such permission was given by any person, then it should be brought home to such person." it will be observed that the questions presented by the exception are not identical with those ruled upon by his honor the presiding judge when the objection was interposed to the admissibility of the testimony. The testimony was admissible, inasmuch as it was responsive to the allegations of the complaint. Hicks v. R. R., 63 S.C. 570, 41 S.E. 753. Furthermore, the ruling of the circuit judge was in accordance with the principles announced by this court on the former appeal in this case. 61 S.C. 556, 39 S.E. 758.

Second Exception. The defendant's attorney objected to the introduction of the ordinance in evidence on the following grounds: "(1) Because the accident did not occur at a street or railroad crossing, but occurred upon a trestle 100 or 150 yards away; and (2) because the ordinance is not directed against the railroad company, but against the engineer and the men in charge of the train; and (3) as to the rate of speed." The testimony was competent, because it was responsive to the allegations of the complaint.

Third and Fourth Exceptions. These exceptions will be considered together. On the former hearing this court laid down certain rules for the guidance of the circuit court, relative to the questions under consideration, when it used the following...