GARY
A. J.
The
complaint herein (omitting the formal allegations as to the
incorporation of the defendant) is as follows: "(4) That
on or about August 19, 1891, the defendant corporation
negligently and unlawfully allowed one of its trains, made up
of a locomotive and a number of freight cars, in charge of
one of its authorized agents, to stop for a considerable time
across one of the public streets of the town of Gaffney City
in said county and state (through which town said road runs)
all of which was against the ordinances of said town, and a
great annoyance and inconvenience to the citizens of the
same. (5) That on said day the plaintiff, while transacting
his business in said town, had occasion to cross said
railroad track, and being unable, without very great
inconvenience and loss of time, to go around said train then
stopped across said street, as hereinbefore stated, on which
said street plaintiff was walking, the plaintiff was
compelled to cross over said track by going between two of
said freight cars; that when plaintiff reached said track,
and started to go over, the said train was standing
motionless across said street; that while plaintiff was in
the act of crossing between said cars, without the slightest
notice or warning,--without blowing the whistle or ringing
the bell on said locomotive,--the defendant company, through
their conductor and engineer then in charge of said train,
negligently,
recklessly, and unlawfully caused said train of cars to move
rapidly and suddenly, and thereby jarred the plaintiff, and
caught his foot between two of said cars, and so mangled and
crushed his said foot that amputation became necessary, all
of which was grossly, negligently, recklessly, and unlawfully
on the part of the said defendant corporation. (6) That by
reason of said gross negligence and recklessness of the
defendant, and without any fault of his, the plaintiff has
suffered great injury and damage in his mind and body, as
hereinbefore stated, in the sum of fifteen thousand
dollars." The defendant denied each and every allegation
of the complaint, and set up contributory negligence as a
defense.
The
case was first tried before his honor, Judge Wallace, in
1893, who granted an order of nonsuit. The plaintiff appealed
from the order of nonsuit, which was reversed by the supreme
court. 22 S.E. 789. The case was next tried in February,
1896, before his honor, Judge Townsend. The jury rendered a
verdict in favor of the plaintiff for $1,500. The defendant
has appealed to this court upon numerous exceptions, which,
however, will not be considered seriatim, as they raise
practically the following questions, to wit: (1) Was there
error on the part of the circuit judge in charging the jury
that sections 1685 and 1692 of the Revised Statutes were
applicable to this case? (2) Was there error on the part of
the circuit judge in his charge to the jury as to the law of
trespass? (3) Was there error on the part of the circuit
judge in his charge to the jury as to the risk assumed by the
plaintiff in crossing the railroad track? (4) Was there error
on the part of the circuit judge in his charge in defining
gross and willful negligence? The fifteenth and sixteenth
exceptions were abandoned.
We will
first consider whether there was error on the part of the
presiding judge in charging the jury that sections 1685 and
1692 are applicable to this case. Those sections are as
follows:
"Sec.
1685. A bell of at least thirty pounds weight and a steam
whistle, shall be placed on each locomotive engine, and the
bell shall be rung or the whistle sounded, by the engineer
or fireman, at the distance of at least five hundred yards
from the place where the railroad crosses any public
highway, street or traveled place, and be kept ringing or
whistling until the engine has crossed such highway or
street or traveled place; and if the engine or cars shall
be at a stand still within a less distance than one hundred
rods of such crossing the bell shall be rung or the whistle
sounded for at least thirty seconds before the engine shall
be moved, and shall be kept ringing or sounding until the
engine shall have crossed such public highway or street or
traveled place."
"Sec.
1692. 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
article, and that such neglect contributed to the injury,
the corporation shall be liable for all damages caused by
the collision or to a fine, recoverable by indictment,
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."
The
appellant, upon request, was granted leave by this court to
review the former decision of this court in the
above-entitled case.
At the
time when the plaintiff went between the cars for the purpose
of crossing the track, the train was at a standstill and
obstructed the crossing. It was therefore the
plainly-expressed duty of the defendant, before moving the
engine, to ring the bell or sound the whistle for at least 30
seconds.
We next
proceed to consider whether the plaintiff, in attempting to
cross the railroad track as he alleges, is such a person as
the statute contemplates, when it says: "If a person is
injured in his person or property by collision with the
engines or cars of a railroad corporation at a crossing
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