Lamb v. Southern Ry. Co.

• Decision Date: 29 April 1910
• Citation: 67 S.E. 958,86 S.C. 106
• Parties: LAMB v. SOUTHERN RY. CO. et al. [D1]
• Court: South Carolina Supreme Court

67 S.E. 958

86 S.C. 106

LAMB v. SOUTHERN RY. CO. et al. ^[D1]

Supreme Court of South Carolina

April 29, 1910

Appeal from Common Pleas Circuit Court of Edgefield County; Charles G. Dantzler, Judge.

Action by T. E. Lamb, administrator, against the Southern Railway Company and another. From a judgment for plaintiff defendants appeal. Affirmed.

Abney & Muller, N. G. Evans, and S. Monzon Smith, for appellants. J Wm. Thurmond, Sheppard Bros., and C. H. & R. S. Cohen, for respondent.

WOODS J.

The steel bridge of the Southern Railway Company, crossing the Savannah river from Hamberg, S. C., to Augusta, Ga., was built and is maintained solely for railroad purposes. About 200 yards from this bridge there is a bridge maintained for the use of the public. James J. Chapman, on the 31st of March, 1908, undertook to walk across the railroad bridge and was killed, either by being knocked off the bridge by one of the defendant's engines, or by falling into the river in the effort to get out of the way of the engine. The plaintiff, as administrator of Chapman's estate, recovered judgment for $3,000 against the defendant railroad company, under a complaint alleging that Chapman's death was caused by the joint and concurrent negligence, recklessness, and wantonness of the defendant railroad company and its agent in charge of the engine, the defendant Brewer, in these particulars: "(a) In running the said locomotive engine across the said bridge without a headlight while it was dark; (b) in running the said locomotive engine at a high rate of speed across said bridge when the said engineman knew, or by the exercise of due care could and would have known, that he would meet or run over some person walking across said bridge, as it was dark thereon; (c) in failing to stop or lessen the speed of said engine after the said James J. Chapman was seen, to give him an opportunity to escape from his danger; (d) in failing to have a safe place from one end of the bridge to the other for persons walking across the same, to stop and protect themselves from the passing engine or train; (e) in having the safety aprons too far apart; (f) in that the said G. T. Brewer, the engineman in control of said engine, saw, or by the exercise of ordinary care could and would have seen, the said James J. Chapman, or his bulk, in time to stop the said engine before reaching him, but he did not even reduce the speed thereof, which, if done, might have given the said James J. Chapman a chance to escape from his place of danger; (g) in that the said engineman in control of said engine failed to keep a reasonable lookout for persons passing to and fro on said bridge; (h) in striking the said James J. Chapman, and hurling him into said river, or in putting him into such imminent danger of life or limb, as to cause him to leap or back into said river, as a safer way of escape from his dangerous position." The main question made by the appeal is whether a nonsuit should have been granted, on the grounds: (1) That there was an entire absence of evidence tending to show that the death of Chapman was due to the actionable negligence, or the recklessness or wantonness of the defendants, or either of them; and (2) that the evidence admitted of no other inference than that the plaintiff was guilty of contributory negligence.

The case is one of difficulty, because the evidence shows beyond doubt that a main proximate cause of Chapman's death was his taking the great and perfectly obvious peril of walking over a railroad bridge when the safe public bridge over the river was within easy access. There are differences in favor of the defendant on this point between this case and Jones v. C. & W. C. Ry., 61 S.C. 556, 39 S.E. 758; Matthews v. Seaboard Air Line Ry., 67 S.C. 501, 46 S.E. 335, 65 L. R. A. 286; McKeown v. S.C. & G. R. R., 68 S.C. 483, 47 S.E. 713; Goodwin v. A. C. L. R. R., 82 S.C. 321, 64 S.E. 242; Bamberg v. A. C. L. Ry. Co., 72 S.C. 389, 51 S.E. 988. These cases decided that it could not be laid down as an inevitable inference that a person walking on the railroad right of way was always a trespasser, but that it might be inferred that he was a licensee, when the railroad company had acquiesced in the general use by the public of the roadbed as a path or street. But in these cases, when the danger from trains was involved, the public use was of the ordinary roadbed or a very short trestle from which escape was easy without stopping the train or in any way interfering with the railroad business. In the cases cited it was entirely consistent with reason to say that it was not negligence per se for a person to walk on the right of way expecting to step off on the approach of a train; and to hold further that it may be inferred, from the general and constant travel on the right of way of large numbers of persons in a populous community, that the railroad company had acquiesced in the public use of its right of way, and that it cannot treat those whom it has reason to expect to find there as trespassers.

But in this case Chapman was killed while walking on a railroad bridge at least a quarter of a mile in length across the Savannah river, which was a part of a long trestle with some fills. The facts relied on to indicate an implied acquiescence by the railroad company in its use by the public were that many persons actually used the trestle to cross without objection by the railroad authorities, and that one or two planks were laid on the cross-ties and used as a walkway. But witnesses for the plaintiff testified that at Schultz's Hill, near the beginning of the trestle, there was a signboard posted, plainly forbidding persons to use the trestle, that the passage of trains over the bridge was very frequent, and that the attempt to cross the bridge was dangerous.

Hardly anything could be more stupid than a railroad company's acquiescence in the use of its river bridges by pedestrians. Such stupidity should not be lightly inferred, We do not see how acquiescence so senseless can be inferred from the fact that many persons chose to take the risk of using the trestle when the railroad company had posted a conspicuous notice forbidding them to do so. It cannot be inferred, from the fact that planks were placed on the bridge by the company to be used by its own employés, that the railroad company intended others to cross. When a railroad company or other owner of dangerous property warns persons against its use those who insist on incurring the peril of using it, however numerous they may be, have no right...