Lee v. Northwestern R. Co.

• Decision Date: 03 November 1909
• Citation: 65 S.E. 1031,84 S.C. 125
• Parties: LEE v. NORTHWESTERN R. CO.
• Court: South Carolina Supreme Court

65 S.E. 1031

84 S.C. 125

LEE v. NORTHWESTERN R. CO.

Supreme Court of South Carolina

November 3, 1909

Appeal from Common Pleas Circuit Court of Kershaw County; Geo. W Gage, Judge.

Action by Stephney Lee against the Northwestern Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

The Court's charge was as follows:

"Mr Foreman and Gentlemen: The plaintiff and the defendant request me to charge you these propositions, and they will be the greatest part of my charge. Where I read them, they may be considered charged; where I have modified them, I have written the modification in pencil; and where I have refused any, I have marked them refused, and shall not read them.

"'(1) If the jury find that the plaintiff was injured at the place where the public road crosses the tracks of the defendant company, caused by the neglect to give the signals, and such neglect contributed to his injuries, then the defendant is liable to him in damages therefor, unless the jury further find that the plaintiff was guilty of gross or willful negligence, or was acting in violation of law, and that such gross or willful negligence on the part of the plaintiff contributed to the injury as a proximate cause thereof.'

"'(2) If the bell is not rung or the whistle sounded at least 500 yards from the place where the public highway crosses the railroad, and is not kept ringing or whistling until the engine shall have passed such highway, then the failure to give the signals in this prescribed way is negligence in itself; and, if a person is injured at such crossing; and it appearing that such signals were not given,' and nothing else appearing in the testimony, 'it is presumed that the injury is the result of the failure to give the statutory signals.'

"'(3) If the prescribed signals were not given--that is, if the bell was not rung or the whistle sounded 500 yards from where the railroad crosses the public highway, and was not kept ringing or whistling continuously until the locomotive passed the crossing--and plaintiff was injured at such crossing, then the plaintiff would be entitled to recover damages, unless he was guilty of gross or willful negligence, and such gross or willful negligence contributed to the injury as a direct and proximate cause thereof, or unless he was guilty of a violation of the law.'

"'(4) Where a person is injured at a point where the railroad crosses a public highway, and the statutory signals are not given, the burden is on the defendant company to show that the injured person knew of the approach of the train in time to have avoided the collision.'

"'(5) A failure of the servant of the road in charge of the train to give the statutory signals when approaching the crossing is negligence per se; and, where a person is injured at the crossing'--nothing else appearing in the testimony--'the presumption is that such neglect was the cause.'

"'(6) The liability of a railroad company for an injury at the crossing, where it omitted to give the statutory signals, does not depend on whether or not such omission was the proximate cause of the injury, as, under the statute, it is generally liable if it contributed thereto.'

"'(7) When the law speaks of an act of negligence as contributing to the injury, it means as a direct and proximate cause thereof, without which the injury would not have occurred.'

"'(8) Where the railroad company pleads contributory negligence, the burden is on the railroad to prove it.'

"Requests 9, 10, and 11 are refused, because irrelevant.

"The defendant requests these propositions, and I will make the same statement: Where modified, the modification is written in pencil; and where refused, it is so marked.

"'(1) There is no law in this state'--I add: Unless there be a town ordinance on the subject--'compelling a railroad company to run at a given rate of speed, or to slacken its speed at a particular place. It is a common carrier, having its duty to perform to the public, and all that is required of it is that its train of cars be run at a rate of speed consistent with ordinary care. What is ordinary care must be determined from each particular case that may arise.'

"'(2) It was the duty of the plaintiff in approaching the crossing to do all that care and prudence would dictate to avoid injury, and the greater the danger the greater the care that must be used. He should use his faculties in proportion to the danger impending.' To which the judge added: But his action is not defeated, unless he was guilty of gross negligence or willfulness, or of a violation of law.

"'(3) The mere fact that the plaintiff may have been injured does not entitle him to a verdict against the road; to enable him to recover he must show, by the greater weight of the evidence, that the railroad was negligent, and that such negligence contributed to the injury.'

"The fourth and fifth are refused.

"Defendant's requests 2, 3, 4, and 5 as submitted--2 and 3 modified as shown in charge --4 and 5 refused.

"'(2) It was the duty of the plaintiff in approaching the crossing to do all that care and prudence would dictate to avoid injury, and the greater the danger the greater the care that must be used. He should use his faculties in proportion to the danger impending.'

"'(3) The mere fact that the plaintiff may have been injured does not entitle him to a verdict against the road; to enable him to recover he must show by the greater weight of the evidence that the railroad was negligent, and that such negligence caused the injury.'

"'(4) If the plaintiff could have avoided the injury by taking ordinary care in approaching the crossing, he cannot recover. It was his duty to use such care in traveling on the public highway.'

"'(5) The court is requested not to submit the case to the jury as a case to which section 2139, Civ. Code 1902, has any application, for the reason that there are no proper allegations in the complaint to bring the case within this section of the statutes; the allegations being only that there was a failure to give the signals, which states no facts, but only a legal conclusion, and raises no question which may be considered under that statute.'

"The major part of what I will say to you will consist of two short statutes, which I will read:

"Section 2132: 'A bell of at least thirty pounds weight and a steam whistle shall be placed on each locomotive engine, and such bell shall be rung, or such whistle sounded by the engineer or fireman at the distance of at least 500 yards from the place where the railroad crosses any public highway or street or traveled place, and be kept ringing or whistling until the engine has crossed such highway or street or traveled place; and if such engine or cars shall be at a standstill within a less distance than 100 rods of such crossing, such bell shall be rung, or such whistle sounded, for at least thirty seconds before such engine shall be moved; and shall be kept ringing or sounding until such engine shall have crossed such public highway, or street or traveled place.'

"Section 2139: 'If a person is injured in his person or property by collision with the engines or cars of a railroad corporation at a crossing, and it appears that the corporation neglected to give the signals required by this chapter, and that such neglect contributed to the injury, the corporation shall be liable for all damages caused by the collision, or to fine, recoverable by indictment, as provided in the preceding section, unless it is shown that, in addition to a mere want of ordinary care, the person injured or the person having charge of his person or property, was, at the time of the collision, guilty of gross or willful negligence, or was acting, in violation of the law; and that such gross or willful negligence or unlawful act contributed to the injury.'

"Now, these two sections are plain enough to understand without expounding them, and I am going to leave this case with you, with

one further statement. The plaintiff puts his hand upon four acts, which he charges against the railroad, points them out like a horse dealer would point out mules in his stable. He says: First, that they are guilty of negligence in backing its train at a rapid, reckless rate of speed; that it was guilty of negligence in backing its car through a deep cut overgrown with bushes; the third is of like import; and in failing to give the signals prescribed by the statute.

"Now, you must determine how fast that car was backing; you must determine how deep that cut was; you must determine whether or not there were bushes on the cut, and whether or not it was an act of carelessness in the railroad to allow those bushes out there at or near the crossing, if they were, so as to obstruct the view.

" Negligence is defined to be the lack of ordinary care. It ought not to be necessary to define it at all. Negligence is carelessness, and carelessness is negligence. Now, was the railroad company guilty of running its cars rapidly? I charge you, and I have already charged you, that there is no law requiring a railroad company to run its car fast or slow upon its track at this place.

"Was the track obscured? I charge you that was a public crossing. If there was a highway there, if the railroad crossed a highway, then the place where they crossed was public, and the public have the right to go by there. It is a place where each side had the common use of, and each must use it with reference to the rights of the other. Now, was that crossing obscured by a high bank, or bushes on the bank, so as to make it a perilous place for the public to go and come? Did the railroad company know that, and ought it to have known it, and was its failure to

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