Settlemeyer v. Southern Ry. Co., Carolina Division

• Decision Date: 26 March 1912
• Citation: 74 S.E. 137,91 S.C. 147
• Parties: SETTLEMEYER v. SOUTHERN RY. CO., CAROLINA DIVISION.
• Court: South Carolina Supreme Court

74 S.E. 137

91 S.C. 147

SETTLEMEYER v. SOUTHERN RY. CO., CAROLINA DIVISION.

Supreme Court of South Carolina

March 26, 1912

Appeal from Common Pleas Circuit Court of Cherokee County; Robt. Aldrich, Judge.

"To be officially reported."

Action by W. L. Settlemeyer against the Southern Railway Company Carolina Division. From a judgment for defendant, plaintiff appeals. Reversed.

Butler & Hall and Otts & Dobson, for appellant. Sanders & De Pass for respondent.

WOODS J.

The allegations of negligence and injury resulting therefrom on which the plaintiff sought to recover from the defendant are as follows: "That on or about the 9th day of July, 1909, while driving along the public highway leading from Cherokee Falls to his home at Gaffney, in said state and county, and while attempting to cross the tracks of the defendant at a regular crossing, at the depot for Cherokee Falls, a freight car being used by the defendant was across the public road or highway, and had negligently and carelessly been left across said public road for a long time, in violation of the statute laws of this state, and a willful disregard of the rights of the plaintiff and the public; and, in order to continue his journey, the plaintiff was forced, by reason of the willful and negligent blocking of said public road, or crossing, to drive around and above the regular crossing to cross defendant's tracks. That the freight car which was willfully and negligently left standing across said public crossing by the defendant, its lessee, agent, servant, and representatives, was very offensive, in that it smelled very foully, and gave forth a great stench. That plaintiff's horse was made afraid and became very much frightened by reason of the foul smell and great stench arising from said car, became unmanageable, and in surging and violent effort to get away from the foul smelling car, which had been left standing across the public crossing, as aforesaid, ran violently against the bank of the cut of the railroad, which came down even with the public road on the opposite side of the railroad, and just above the public crossing, and by reason of which the plaintiff was thrown violently from his buggy, and was greatly hurt and painfully injured. ***"

The circuit judge directed a verdict on the ground that there was no testimony tending to prove that any act of negligence of the defendant alleged in the complaint was the proximate cause of the injury. On this vital point the plaintiff testified, in substance, that a car in which wild animals were kept by a showman had been left on the track so as to project across the wagon track of the road, leaving, however, room between the car and the station building for vehicles to pass; that as he approached the car, riding in a buggy, his horse was frightened and excited by the noisome odors emitted from the car, the fright of the horse causing plaintiff to form the intention of turning back; that at this juncture he saw a box or case of rabbits on the station platform; and that the noise made by the jumping of the rabbits in the wire cage so increased the fright of the horse that he became unmanageable, and ran around the car against an embankment, throwing plaintiff out of the buggy. It thus appears that there was evidence of two causes which frightened the horse and made him run away--the foul odor from the car, and the noise made by the rabbits. The complaint contains no allegation of negligence against the defendant with respect to the noise made by the rabbits, and, if the evidence had shown that the horse was frightened by that alone, the case would have failed; for a plaintiff cannot recover on proof that he was injured by an act of negligence by the defendant not charged in the complaint. But, while it is necessary to recovery to show that an act of negligence alleged in the complaint was one of the proximate causes, it is not essential to show that it was the sole proximate cause. There may be a recovery upon evidence tending to show that an injury was received by reason of the negligence alleged in the complaint operating as a proximate cause in conjunction with another independent proximate cause. This rule is familiar and generally recognized. Thompson v. Seaboard A. L. Ry., 78 S. C 384, 58 S.E. 1094; Id., 81 S.C. 333, 62 S.E. 396, 20 L. R. A. (N. S.) 426; Blakely v. Laurens County, 55 S.C. 422, 33 S.E. 503; 29 Cyc. 497.

As the evidence tended to show that the foul odors of wild animals coming from the car, alleged in the complaint as the proximate cause, was one of the proximate causes of the fright, the runaway, and the resulting injury to the plaintiff, it follows under the principle above stated that this was sufficient to require the submission of the issue of proximate cause to the jury, if leaving the car on the crossing was an act of negligence.

On this last point it is important to observe that the car was not stopped on the crossing temporarily as a part of a passing train, but was left standing for several days across the road where the defendant must have known that persons were continually passing in vehicles drawn by horses and mules. Aside from the common knowledge on the subject, the fact that the plaintiff's horse and other horses were excited and frightened by the odor of wild animals made the issue one for the jury to determine whether the defendant should have known that the presence of the car was dangerous to public travel, and whether due care required that it should have placed such a car further away from the crossing.

The judgment of the circuit court is reversed.

FRASER, J. concurs.

HYDRICK, J.

I concur in the opinion that the judgment should be reversed for the reasons stated in the opinion of Mr. Justice Woods, and also for the following additional reasons: The question of proximate cause is ordinarily one for the jury. Doolittle v. Railway, 62 S.C. 130, 40 S.E. 133; Schumpert v. Railway, 65 S.C. 332, 43 S.E. 813, 95 Am. St. Rep. 802; Rinake v. Mfg. Co., 55 S.C. 179, 32 S.E. 983; Carson v. Railway, 68 S.C. 56, 46 S.E. 525. Numerous other cases might be cited from the decisions of this court. The same rule prevails in other jurisdictions. 21 A. & E. Enc. L. (2d Ed.) 508;. 29 Cyc. 639. In 29 Cyc. 503, it is said: "It is usually held that, although an injury is caused by frightened animals, yet the negligent act of the person who caused them to be frightened is the proximate cause of the injury; the result being a natural consequence of the original act." Of course, if the evidence is susceptible of only one reasonable inference, the court may draw the inference. But in this case the testimony is certainly susceptible of more than one inference. Several of the witnesses testified that the car gave forth a foul odor, as of wild animals, and that it partially obstructed the public road. Plaintiff testified that his horse was frightened by the odor from the car. It is true there was some confusion in his testimony as to the connection which the cage of rabbits had with the fright of his horse, but I think it was made reasonably clear right at the last of his testimony set out in the opinion of Mr. Justice WATTS that it was the odor of the car, and not the rabbits, which frightened his horse. He says that the horse became frightened just as he was passing or had passed the rabbits, and came in front of the car; and that, when he had passed them, his horse snorted, and then the rabbits began to jump and surge. Two other witnesses testified that their horses became frightened at the car, when the rabbits were not there, so far as it appears from the testimony. It is matter of common knowledge that horses do take fright at the smell of wild animals. From this testimony it is, I think, as probable that the fright of the horse was caused by the odor from the car, and that his snort caused the rabbits to become alarmed, as that the alarm and noise of the rabbits frightened the horse; or it may be, as suggested by Mr. Justice WOODS, that the scent of wild animals emitted from the car combined with the noise of the rabbits to frighten the horse.

Moreover, the frightening of his horse by the odors from the car is not the only negligence alleged by the plaintiff as the cause of his injury. He alleges, also, that the road was negligently obstructed by leaving the car extending into it, so that in going around the end of the car the horse ran his buggy into a bank, which caused him to be thrown out and hurt. There was testimony tending to support this allegation. So, no matter what caused the fright of the horse, if plaintiff's injury was proximately caused by the negligent obstruction of the road with the car, defendant would be liable. Carson v. Railway, supra.

The circuit judge based his ruling upon the authority of Mason v. Spartanburg, 40 S.C. 390, 19 S.E. 15, 42 Am. St. Rep. 887, which I do not think at all applicable to the facts of this case. Moreover, in Blakely v. Laurens, 55 S.C. 422, 33 S.E. 503, this court expressed dissatisfaction with that case, and also with Brown v. Laurens, 38 S.C. 282, 17 S.E. 21, and practically limited their authority to a precisely similar state of facts, saying: "We are not disposed to extend those cases a single iota."

WATTS J. (dissenting).

This is an action brought in 1910 to recover $3,000 for injuries alleged to have been received by plaintiff in 1909, while driving along the public highway leading from Cherokee Falls to his home in Gaffney, S.C. Plaintiff is a physician, and had occasion to go to Cherokee Falls on a professional visit to a patient. It is alleged in the complaint that the defendant had left a freight car across the public highway or road, in violation of the statute law of this state, and in willful disregard of...