Smalley v. Southern Ry. Co.

• Decision Date: 05 April 1900
• Parties: SMALLEY v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

35 S.E. 489

57 S.C. 243

SMALLEY v. SOUTHERN RY. CO.

Supreme Court of South Carolina

April 5, 1900

Appeal from common pleas circuit court of Greenville county; George W. Gage, Judge.

Action by E. A. Smalley, administrator of the estate of Oscar Smalley, deceased, against the Southern Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

The following are plaintiff's exceptions: "(1) His honor erred in striking out that portion of the testimony of J. H Southern to the effect that there was 'a good deal' of travel along the foot planks of the defendant's trestle; it being submitted that this testimony was competent as tending to affect the amount of care which should have been exercised by the defendant's agents in crossing said trestle. (2) He erred in holding that the evidence does not show a lack of ordinary care, and in granting a nonsuit on that ground; it being submitted that he should have held that the question was not whether the evidence showed a lack of ordinary care, but whether it tended to show a lack of ordinary care; and he erred in not holding that the evidence tended to show a lack of ordinary care, and in not refusing the nonsuit on that ground. (3) He erred in holding that he was asked to assume that the engineer ought to have seen Oscar Smalley upon the track whereas he should have held that this was a question for the jury, and that there was evidence tending to show that the engineer or defendant's other agents did see Oscar Smalley upon the track, and that this evidence tended to show that they saw that he was in a dangerous position. He erred in not leaving these questions to the jury, and in not refusing a nonsuit. (4) It is submitted that the plaintiff's testimony tended to show that the train came to a stand at a railroad junction about eight hundred feet from the place where Oscar Smalley was lying in an apparently helpless condition, that the track was straight, and the view unobstructed, and that said Oscar Smalley was in plain and open view of the engineer and fireman on defendant's train, and the engineer was in his usual place, where he could see the track. It is submitted that the judge should have left it to the jury to say whether these facts tended to show that Oscar Smalley was seen by the defendant's agents, and that his condition was known to them, and whether the failure to make any effort to stop the train till too late was not negligence on the part of the defendants. He therefore erred in not so holding, and in not refusing the nonsuit on this ground. (5) It is submitted that the evidence tended to show that the defendant's agents saw Oscar Smalley before the collision in time to have stopped the train by the exercise of reasonable precautions, and that they saw that he was in a dangerous position, from which he might not be able to extricate himself, or that he was insensible to his danger; and the judge should have left it to the jury to say whether this was true, and whether the defendant's agents were guilty of negligence in not endeavoring to stop said train in time to avoid a collision. Therefore he erred in not so holding, and in not refusing the nonsuit. (6) The judge erred in holding that the engineer has something else to do than to watch the track, and the fireman has to feed his box,' meaning thereby that neither was under any obligation to keep a lookout along its track; whereas he should have held that it is the duty of those in charge of a train to keep a lookout along its track for human beings who, from youth, or misfortune, or other cause, are unable to take care of themselves, or are insensible to their danger; and, there being evidence tending to show that the defendant's agents neglected this duty, the nonsuit should have been refused. (7) It is submitted that if an engineer in charge of a train discovers, or by reasonable watchfulness may discover, a person upon the track, apparently helpless or infirm, it is his duty to use all ordinary means to avoid a collision without imperiling the lives of his passengers, and to stop the train in time to avoid such collision. It should have been left to the jury to say whether the defendant's agents were not negligent in this respect, and the judge erred in not so holding, and in not refusing the nonsuit."

Haynsworth Parker & Patterson and J. I. Earle, for appellant.

T. P. Cothran, for respondent.

McIVER C.J.

The plaintiff, as the administrator of the personal estate of his deceased son, Oscar, brings this action to recover damages from the defendant company, sustained by reason of the killing of said Oscar through the alleged negligence of said company. The allegations of the complaint may be stated briefly as follows: That on the morning of the 3d of August 1897, about sunrise, the said Oscar "was attempting to cross a very high and long trestle on the defendant's railway," when one of the defendant's passenger trains going north approached said trestle, and, just before reaching the trestle, the train "came to a pause," as required by law, at a point where it connected with a railroad from Greenville to Columbia, from which point the entire trestle was in plain and open view of the engineer in charge of the locomotive drawing said train; that while said Oscar was on the trestle, "by reason of having his foot caught between the ties of said trestle, which were close together, or by reason of some other accident or cause unknown to the plaintiff, he was unable to make further progress, or to escape from the approaching train; that the dangerous position of the said Oscar Smalley was plainly manifest to those in charge of the said engine, but they negligently and carelessly failed to stop the said engine, and negligently and carelessly ran upon and over the said Oscar," inflicting the injuries from which he soon thereafter died; "that the said train of cars was what is known as a 'vestibule passenger train,' and was supplied with the approved air brakes and best appliances for stopping cars, and by exercise of due care on the part of those in charge of the said train it could have been stopped so as to have avoided injury to the defendant [the intestate(?)]; that, although the said Oscar Smalley was evidently in a dangerous position, from which he could not extricate himself, in a plain and open place, where he could easily have been seen for a long distance, the defendant's servants made no effort to stop the said train until after it had struck him," causing the injuries which resulted in his death as aforesaid. The testimony on the part of the plaintiff tended to show the following facts substantially: That the trestle referred to is 715 feet in length and 34 feet in height, and the distance from the stop post to the south end of the trestle is 340 feet, and from the south end of the trestle to the second chair (the point where intestate seems to have been struck by the train) the distance is 500 feet, and that a person standing on the railroad track near the stop post would be able to see the trestle throughout its entire length, and discern any object upon it; that a plank is laid down on the trestle, upon which persons can walk, but there is a notice posted at the end of the trestle, warning the public to keep off the trestle; that the first that was seen of the said Oscar on the morning when he was killed he was sitting near the north end of the trestle, upon the stringers (which are described as long pieces of timber, 6X8, nailed on the end of the cross-ties on the trestle running along with the rails), with his feet hanging down near to the ground; when next seen he had gotten up, and was walking along, "looking down on the trestle, like he was looking to see what the trestle hands had been doing," a pile driver being at work below the trestle; that the approaching train stopped at the stop post beyond the trestle, and about the time it was crossing the new run of Reedy river, which the trestle spanned, the deceased was seen stooping down, or squatting down, or sitting down, as the witnesses variously expressed it, where soon after he was struck by the train and killed. At the close of the testimony...