GARY
J.
This
was an action for damages by Hester Strother, as
administratrix of the estate of her deceased husband, Robert
Strother, for the alleged negligent killing of said Robert
Strother by the defendant, on the 29th day of July, 1895
while he was crossing its track at a place which, it is
alleged, was a public road or traveled place. The third
paragraph of the complaint is as follows: "(3) That on
the 29th day of July, 1895, the intestate, Robert Strother
in the pursuit of his business, was crossing the track of the
defendant company at the place on said track which was a
traveled place, to wit, the road leading from the
Garner's Ferry road to the Bluff road, known as
'Yates' Crossing, in Richland county, used in common
by the public, and which the public had a right to use, when
the defendant carelessly, unexpectedly, and without proper
warning and due reasonable precaution, and without giving the
signal required by section 1685 of the General Statutes of
South Carolina, and without ringing its bell or sounding its
whistle, caused one of its locomotives, which was drawing a
train of cars, to rapidly approach the said intestate, Robert
Strother, and struck him, and so injured him that death
ensued therefrom a few hours thereafter." The defendant,
in its answer to the complaint, denied each and every
allegation thereof, and set up the defense of gross
negligence on the part of plaintiff's intestate. At the
close of plaintiff's testimony, the defendant made a
motion for a nonsuit, on the following grounds: "(1)
That the plaintiff had failed to produce any evidence going
to show that the road in question was such a 'traveled
place,' as contemplated by the statute; and (2) that the
plaintiff had failed to adduce any evidence going to show
that the accident was caused by the negligence of the
company." The motion was refused, and testimony was then
introduced by the defendant. The jury rendered a verdict in
favor of the plaintiff for $5,000. The defendant made a
motion for a new trial, on the ground, inter alia, that the
verdict was excessive. The presiding judge signed an order
granting the motion, unless the plaintiff would remit on the
record all over and above the sum of $2,500. The plaintiff
did so remit, and judgment for $2,500 was duly entered up
against the defendant.
The
defendant appealed, upon exceptions, the first of which is as
follows: "Because his honor, the presiding judge, should
have granted the nonsuit asked for by the defendant at the
close of plaintiff's testimony, and it was error of law
in him not to have done so."
The
following testimony was introduced, relative to the first
ground hereinbefore mentioned,
upon which the motion was made for a nonsuit: Mrs. M. A.
Yates: "I have been living here since 1870. This road
has been open ever since I have been here. It is a mill road,
and has been used by the public ever since I have been
here." Henry Yates: "Q. In regard to that road, how
long have you been living down there? A. Eighteen or twenty
years. Q. How long has that road been open? A. Ever since I
have been there. Q. Is that a private or a public road? A. I
would consider it a public road. It is the road to the mill,
the road to the church and the schoolhouse. It is the outlet
from the Bluff road to the McCord's Ferry road; the
'Mill Creek Road,' they call it. Q. What is that
mill? A. The Padgett Mill; the 'Mill Creek' is the
name of the creek. Q. State to the court and jury, is there
any one who has the right to stop that road up? A. I think
not; we have not. Q. And it has been a public road? A.
Tobacco wagons, and everybody that travels, travels through
there. Q. And the circus sometimes? A. Yes; I suppose so. We
can't stop anybody." Cross-examinations: John Yates:
"Q. Who owns the land by Yates' crossing? A. My
mother. Q. What is the extent of that plantation? A. I think
three hundred and some odd acres in it. Q. About a year ago,
did you run a fence across this road, turning it a little out
of its regular course, fifty yards? A. No, sir; just the
least bit; put the fence out the least bit; did not interrupt
the road at all. Q. How far would you say the road was turned
out of its old course? What is the greatest distance that it
departs from this old course at present? A. It did not
interfere with the road whatever. Q. It was turned from its
old course about fifty yards? A. No, sir; not that far. I do
not think more than three or four feet; not much more than
that. I helped to put it up. Q. When was this done? About a
year ago? A. Yes, sir; this fall, but we did not stop the
road up, though. Q. You call that the 'Mill Road'? A.
Yes, sir; that is the nearest way to Padgett's Mill for
the people living in the swamp through there. Q. You have
permitted people to pass through there without objection? A.
Yes, sir; couldn't help ourselves. Didn't like the
road being right there in front of the house. Q. Does the
county work the road? A. No, sir. Q. It isn't claimed as
a public highway? A. It isn't worked by the county, but
considered a public highway. Q. What is this road used
principally for? A. Everything. Q. Used largely for going to
Padgett's Mill? A. Padgett's Mill. Tobacco wagons
cross it, and people travel from the Bluff road, and people
out of the swamp go after lumber when a freshet makes it
impassable. They come through there, and come to Columbia. Q.
The road is pretty faint at certain points between your house
and the Bluff road? A. I am telling you the reason why. Last
fall a tremendous storm blew down trees on the main road,
and, rather than cut the trees out, every man would suppose
the next man that came along would cut them, and nobody cut
them. Q. So indistinct, it is hard to find? A. No, sir; you
can find it. Q. How long have you been living there? A. We
moved there in 1870. I have not resided there all the time.
Some years I have been away from there. Q. Have any members
of your family? A. They have; mother has owned the place
since 1870. I was never off the place more than two or three
years at a time. Q. What road is this that crosses there? A.
I live halfway between the Garner's Ferry road and Bluff
road. Some people call it the 'Mill Creek Road,' but
the right name is the 'Garner's Ferry Road.' The
Bluff road leads to the swamp. The Garner's Ferry goes
through under the tin bridge out here. It is used for mill
purposes, and going to church, by both whites and
blacks,--two churches, white and colored church, on the Mill
Creek road,--and is used by the swampers during the freshets.
For instance, if there's a freshet, and the Mill creek
gets so high they cannot cross, they come to the railroad,
come down a private road that I made, side of South Carolina
road, and come to this road, into this road, to the
Garner's Ferry road, and come to Columbia. Tobacconists,
sewing machinists, and even a circus, I have seen going
through there. Q. How long has the road been open? A. I say
since 1870; that is as far as I can say. Q. Don't that
road lead to Padgett's Mill? A. Yes, sir. Q. Could any of
the neighbors shut that road up? Suppose you wanted to shut
it up, could you do it? A. No, sir; I don't think I
could; that was tested. Q. It has been open for the last
twenty-five years? A. Yes, sir; to my knowledge, I say since
1870. Q. Used in common by the public? A. Yes, sir." Ned
Denley: "Q. Where do you live? A. I live on Mr. Jimmie
Hopkins' place. Q. Do you know the road that leads from
the Bluff road to the Garner's Ferry road? A. Yes, sir.
Q. How old are you? A. Sixty-four. Q. How long has this road
been open? A. Ever since I can recollect. I remember the road
when I was about fifteen years old. I been traveling it
backward and forward. Q. Where does the road lead from? A.
From the Garner's Ferry road, just above Padgett's
Mill, and leads out to the Bluff road, leads into the Bluff
road. Q. Who uses that road? A. Everybody and anybody who
have a call there." We cannot say, after reading the
foregoing testimony, that there was not some evidence to be
submitted to the jury that this was such a traveled place, as
is contemplated by the statute.
We will
next consider the second ground upon which the defendant
based its motion for a nonsuit. The failure on the part of
the defendant's servants to ring the bell or sound the
whistle in the manner provided by statute was negligence per
se. When...
