Sanders v. Southern Ry. Co

Decision Date21 April 1914
Docket Number(Nos. 8698-8811.)
Citation97 S.C. 423,81 S.E. 786
PartiesSANDERS. v. SOUTHERN RY. CO., CAROLINA DIVISION.
CourtSouth Carolina Supreme Court

Petition for Rehearing Dismissed May 19, 1914.

1. Railroads (§ 344*)—Accidents at Crossing—Complaint—Omission of Statutory Signals.

A complaint which alleged that the plaintiff was injured by a railroad train, while at a traveled place, without anything to show that it was not an ordinary public crossing, and that the bell was not rung, nor any other precaution taken to avoid injuring plaintiff, when construed liberally, as required by Code Civ. Proc. § 209, states a cause of action, under Civ. Code, §.§ 3222, 3230, requiring the ringing of the bell before the train reaches a place where the railroad crosses any public highway, or street, or traveled place, and allowing recovery by the person injured through the failure to give such signals.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1107-1112; Dec. Dig. § 344.*]

2. Railroads (§ 356*)—Personal Injury— "Traveled Place""Legal Right."

One who is injured while walking along a path on a railroad right of way cannot recover, under Civ. Code, §§ 3222, 3230, allowing a recovery for injuries resulting from failure of a railroad train to give the required signals before crossing a traveled place, where the only evidence of the right to use such path was that the public had used it for more than 20 years, since the public cannot acquire a prescriptive right to the use of a railroad right of way in a manner inconsistent with the right of the company, and the term "traveled place, " in the statute, means a place where the public have, in some manner, acquired the legal right to travel; that is, a right which may be legally enforced, and cannot legally be denied, or interfered with.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1228-1234; Dec. Dig. § 356.*

For other definitions, see Words and Phrases, vol. 8, p. 7079; vol. 5, p. 4080; vol. 8, p. 7704.]

3. Appeal and Error (§ 1066*)--Harmless Error —Instructions —Applicability to Evidence.

Where the evidence did not entitle plaintiff to recover under the crossing signal act (Civ. Code, §§ 3222, 3230), which allows such recovery unless the plaintiff was grossly or willfully negligent, a charge submitting the case to the jury as a case under the statute was prejudicial.

[Ed. Note.—For other cases, see Appeal and Lrror, Cent. Dig. § 4220; Dec. Dig. § 1066.*]

4. Appeal and Error (§ 1066*)—Harmless

Error—Instructions.

Where there was no evidence that plaintiff was entitled to use a path along a railroad right of way which he was using at the time of his injury, an instruction submitting to the jury the question whether he had a right to be on such path was prejudicial as authorizing the jury to find that he was legally entitled to be there, and as failing to submit to them the issue whether he was a licensee or 'a trespasser.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.*]

Gary, C. J., and Watts, J., dissenting.

Appeal from Common Pleas Circuit Court of Charleston County; Prank B. Gary, Judge.

"To be officially reported."

Action by Darby L. Sanders, administrator of Robert L. Sanders, against the Southern Railway Company, Carolina Division. Judgment for plaintiff, and defendant appeals. Reversed.

Joseph W. Barnwell, of Charleston, and B. L. Abney, of Columbia, for appellant.

Logan & Grace, of Charleston, for respondent.

HYDRICK, J. While Robert Sanders was walking along defendant's right of way, going from Columbus street to Line street, in the city of Charleston, he was knocked down and run over by a box car, which was being pushed by a switch engine, and his leg was cut off. He recovered judgment against defendant for $12,500 damages for the injury. He died a short time after the verdict was rendered, and the action was continued in the name of the plaintiff, as administrator of his estate.

That part of defendant's right of way which lies between Columbus street and Line street is a parallelogram in shape. It is about 39 feet wide, and the distance between the streets is 491 feet. Besides the main track, it has on it five side tracks, and numerous switches connecting them with each other and with the main track. It is a part of defendant's switch yard, where switching is constantly being done. The west end of a public court, called Addison's court, which is 18 feet wide, abuts on the right of way about two-thirds of the distance from Columbus to Line street. This is in a populous part of the city, and, for more than 20 years, the public has used that part of defendant's right of way for a walkway between said streets, and between Addison's court and the streets. Whether they did so with the knowledge and acquiescence of the railroad company, and were licensees, or against its objection and in spite of its notices forbidding such use, and were trespassers, was one of the issues of fact which was hotly contested at the trial in the court below.

The first question presented by the appeal is whether the allegations of the complaint are sufficient to bring the case under the crossing statutes (sections 3222 and 3230 of "the Civil Code of 1912).

Section 3222 requires that the bell shall be rung or the whistle sounded 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 the same.

Section 3230 reads: "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 a 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."

The second and third paragraphs of the complaint are as follows:

"(2) That on or about the 8th day of August, 1907, at and between the hours of 5 and 6 o'clock p. m., the plaintiff above named, while on the east side of said defendant corporation's railway track, and at a point between Addison court, a public court in the city of Charleston, and Line street, a public street in the city of Charleston, and while at a traveled place and walkway and place where all people and the public in general have been passing and repassing for more than 20 years last past, and at a point where said defendant's railway track traverses a populous part of the city of Charleston, and a place much frequented by people passing to and fro along said railway going from Columbus street, one of the public streets of the city of Charleston, and from Addison's court, a public court in the city of Charleston, to Line street, another public street in the city of Charleston, all of which facts were well known to the defendant and its agents, servants, and employes; the said defendant corporation, its agents and servants, so negligently, recklessly, carelessly, and wantonly ran, managed, and operated one of the trains of cars that said train of cars approached said traveled place or walkway and populous part of the city of Charleston at a high and dangerous rate of speed, and without giving any signal by ringing the bell, so that the said plaintiff might have been aware of the approach of said train of cars, or taking any precaution whatever to avoid injuring said plaintiff, so that said plaintiff was unaware of the approach of said train of cars, and said train of cars struck said plaintiff with terrific force and violence, crushing and mangling plaintiff's leg, and bruising and injuring his face, and shocking his whole system.

"(3) That the injuries to the plaintiff as aforesaid were caused to the plaintiff by the negligence, carelessness, recklessness, and wantonness of the said defendant corporation, its agents and servants, in approaching said traveled place or walkway and populous part of the city of Charleston at a high and dangerous rate of speed, and in not giving any signal by ringing the bell of said locomotive or taking any precaution whatever to avoid injuring said plaintiff."

Taking the foregoing allegations without the explanatory aid of the evidence show-ing the location of the right of way, the streets, and Addison's court, it could not be said with certainty that the place where plaintiff's intestate was injured was not an ordinary crossing. Therefore, in view of the allegation, which is repeated several times, that plaintiff was injured at "a traveled place, " and that he was run down without any signal by ringing the bell or taking any precaution whatever to avoid injuring him, and giving these allegations a liberal construction, as we are required to do by the Code of Procedure (section 209), we think it clear that the complaint makes a case under the statutes.

In Easterling v. Railroad Co., 91 S. C. 546, 75 S. E. 133, the complaint alleged that Easterling "was crossing a public crossing and traveled place, " when he was struck and killed by ah engine and train of cars operated by the defendant railroad company. And it was alleged that his death was caused by the negligence, etc., of the defendant in "failing * * * to give any signal by ringing the bell or sounding the whistle or in any other way whatsoever of the approach of said locomotive and train of cars to said public crossing or traveled place." Those allegations were held sufficient to bring the case under the statute. The court also said that, if the allegations were so indefinite as to leave the matter in...

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