Kinard v. Columbia, N. & L.R. Co.
| Decision Date | 03 November 1893 |
| Citation | 18 S.E. 119,39 S.C. 514 |
| Parties | KINARD v. COLUMBIA, N. & L. R. CO. |
| Court | South Carolina Supreme Court |
Appeal from common pleas circuit court of Newberry county; James F Izlar, Judge.
Action by Samuel J. Kinard against the Columbia, Newberry & Laurens Railroad Company for personal injuries. Judgment for plaintiff. Defendant appeals. Reversed.
Lyles & Muller, for appellant.
Johnstone & Cromer, for respondent.
This was an action to recover damages for injuries sustained by reason of the alleged negligence of the defendant company. The allegations contained in the complaint are substantially, as follows: That, on the day the disaster occurred, plaintiff was traveling in a buggy along the public highway which crosses the railroad a short distance below the town of Prosperity, and was on the roadbed, ready to cross the railroad, when a locomotive with a train of cars approached, which the officers and agents of defendant company negligently caused to approach the said crossing at great speed, and negligently and carelessly omitted, while approaching the said crossing, to give any signal by ringing the bell or sounding the whistle, by reason whereof the plaintiff was unaware of their approach, and that in consequence thereof the plaintiff, while attempting to avoid a collision, and to control the mule by which his buggy was drawn, was thrown from his buggy to the ground with such force as to break his collar bone. At the close of plaintiff's testimony, defendant moved for a nonsuit upon two grounds: (1) That there was no testimony tending to show "that this accident comes under the provisions of the act relating to that matter; *** that the act was not intended to meet cases of simply frightening animals." (2) That "the testimony shows that the accident was caused by Mr. Kinard's own handling of the mule, rather than as resulting from the approach of the train." The motion was refused by the circuit judge upon the ground that the plaintiff "was there intending to cross," and after hearing the testimony of defendant, and that of the plaintiff in reply, the case was submitted to the jury, who found a verdict in favor of the plaintiff; and, judgment having been entered thereon, the defendant appeals, alleging error in the refusal of the motion for a nonsuit.
The plaintiff's testimony tended to show that he was traveling along the public highway, intending to cross the railroad track, at the crossing near which the disaster occurred, in a buggy drawn by a mule, but before he reached the crossing, and before he had got upon defendant's roadbed, he stopped to speak to a friend at a point some 15 or 20 feet from the railroad track, and while there, seeing the train approaching at a distance of some 50 yards or more he attempted to turn his buggy, when the singletree or the traces broke, (the plaintiff saying the former, while his witness in the buggy with him said the latter,) whereby the mule was released, and the shafts of the buggy were run into a bank, and the plaintiff was thrown from the buggy, and received the injury complained of. There was also testimony tending to show that the signals required by ...
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...defense, to have been gross or willful, or an act in violation of law. Another distinct advantage to the plaintiff. See Kinard v. Railroad Co., 39 S.C. 514, 18 S.E. 119, where it is "It will be observed that there is a great difference in the defence to an action under the statute, and to a......
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