Littlejohn v. Richmond & D.R. Co.

• Decision Date: 19 September 1895
• Citation: 22 S.E. 789,45 S.C. 181
• Parties: LITTLEJOHN v. RICHMOND & D. R. CO.
• Court: South Carolina Supreme Court

22 S.E. 789

45 S.C. 181

LITTLEJOHN v. RICHMOND & D. R. CO.

Supreme Court of South Carolina

September 19, 1895

Appeal from common pleas circuit court of Spartanburg county Wallace, Judge.

Action by J. R. Littlejohn against the Richmond & Danville Railroad Company. Judgment for defendant. Plaintiff appeals. Reversed.

Bomar & Simpson, for appellant.

J. S Cothran and Duncan & Sanders, for respondent.

POPE J.

This action came on for trial at the August, 1893, term of the court of common pleas for Spartanburg county, before his honor, Judge Wallace, and a jury. By the complaint it was alleged that the plaintiff, on the 19th of August, 1891 while passing between a train of freight cars drawn by an engine of defendant (who was lessee of the Air-Line Railroad), in the town of Gaffney, in this state, was so injured by said cars that a portion of his foot was amputated; that when the plaintiff started to pass between said cars the train was stationary, and had been so for 10 or 15 minutes preceding his effort to cross; that the defendant's train was put in motion by the engine drawing the same, without any warning being given, either by blowing the whistle or ringing the bell, as the law requires; and that where the plaintiff attempted to cross between the cars was a public highway leading to his home from said town of Gaffney; and that defendant's train of cars was across this highway. The defendant's answer admitted the control of said Air-Line Railroad, and that it operated the same by its engine and cars, both passenger and freight; but it denied all the facts as to the injury of the plaintiff, and claimed that, if he was ever injured, it was occasioned by his own fault. After the plaintiff had closed his testimony which tended to show that the plaintiff had received the injury as set out in his complaint, the defendant moved for a nonsuit, which was granted. From this judgment the plaintiff now appeals.

We gather from the case that the circuit judge was influenced in granting the same by the fact that he construed section 1685 of the civil statute law of South Carolina (1 Rev. St. p 576) not to require the whistle sounded or the bell rung, in case the train was stopped across a highway, before it was moved from across the same. The appellant contends that this was error. We are inclined to agree with the appellant. The language of the section, so far as this point is concerned, is as follows: "...