Lindler v. Southern Ry. Co.

• Decision Date: 14 February 1910
• Parties: LINDLER v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

66 S.E. 995

84 S.C. 536

LINDLER v. SOUTHERN RY. CO.

Supreme Court of South Carolina

February 14, 1910

Appeal from Common Pleas Circuit Court of Richland County; J. C Klugh, Judge.

Action by Simon O. Lindler against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

E. M Thomson, for appellant. Nelson, Nelson & Gettys, for respondent.

GARY A. J.

This is an action for damages alleged to have been sustained by the plaintiff through the wrongful acts of the defendant.

The following allegations are set out in the complaint "That on or about the 11th day of February, 1905 plaintiff was driving his mare, drawing a single wagon, loaded, from the city of Columbia to his home, which was about five miles out on the 'Two Notch' road, and in so driving it was necessary for plaintiff to drive down Laurel street of the city of Columbia, and over and across the several tracks of defendant, which crossed said Laurel street on Laurens street. That the mare was gentle, and not afraid of street cars, automobiles, or engines. That when plaintiff drove up to near where he would have crossed the tracks there were two of defendant's engines, under steam, stopped and standing on one or more of defendant's tracks across said Laurel street, a public street of the city of Columbia, 100 feet wide, about 25 or 30 feet apart, blocking and obstructing said Laurel street, excepting 25 or 30 feet between said engines, and one of defendant's watchmen or flagmen was standing at said crossing. That said blocking and obstructing of said Laurel street by defendant, and allowing its said engines to stop and remain standing on said crossing, was in violation of the ordinances of the city of Columbia. That, in order for plaintiff to proceed on his way, it was necessary for him to pass between said engines, which he proceeded to do, without being stopped or warned by said watchman or flagman of defendant. That while plaintiff was crossing said tracks the defendant carelessly, negligently, recklessly, willfully, and wantonly, and in utter disregard of the rights of the public and of this plaintiff, allowed its said engines to remain stopped and standing in said street, under steam, blocking and obstructing said street, caused its said engines to emit steam, and make various loud and frightful noises, whereby the mare became frightened, jumped, ran, and kicked plaintiff," etc. The defendant denied the allegations of the complaint, and set up the defense of contributory negligence. The defendant did not offer any testimony, but at the close of the testimony in behalf of the plaintiff requested his honor, the presiding judge, to direct a verdict in its favor, on the following grounds: "There is no evidence offered tending to show any negligence or willfulness, as alleged in the complaint, that was the proximate cause of the accident. There is no evidence of willfulness. There is no evidence whatever showing any unusual or unnecessary noise made by the escape of steam or otherwise from those engines. Unless there had been testimony to that effect, there is absolutely no foundation for or cause of action on behalf of the plaintiff." The motion was refused, and the jury rendered a verdict in favor of the plaintiff for the sum of $1,212.50. The defendant appealed on the ground that the circuit judge erred in refusing the motion to direct a verdict, and upon the ground that the presiding judge refused to charge the following request: " There is no evidence tending to show that the proximate cause of the alleged accident was the obstruction of the crossing, if, indeed, the crossing was negligently obstructed; hence, if you believe from the evidence that there was no unusual or unnecessary noise made by the engine in question, then your verdict must be for the defendant."

The first question that will be considered is whether there was any testimony tending to show negligence on the part of the defendant which was the proximate cause of the injury. The ordinance provides that "it shall be unlawful for any railroad train, engine, car, or part of railroad train, to be stopped on any crossing in the city of Columbia, or to be permitted to remain...