Watson v. Southern Ry.

• Decision Date: 03 April 1903
• Citation: 44 S.E. 375,66 S.C. 47
• Parties: WATSON v. SOUTHERN RY.
• Court: South Carolina Supreme Court

44 S.E. 375

66 S.C. 47

WATSON v. SOUTHERN RY.

Supreme Court of South Carolina

April 3, 1903

Appeal from Common Pleas Circuit Court of Abbeville County.

Action by Mose Watson, administrator of Eugene Watson, against the Southern Railway. From judgment for defendant, plaintiff appeals. Reversed.

J Fraser Lyon, M. P. De Bruhl, and Frank B. Gary, for appellant. T. P. Cothran, for respondent.

JONES J.

This action was an action under sections 2851, 2852, Code 1902 for damages for death of plaintiff's intestate, alleged to have been caused by the negligence of the defendant company. The defenses were (1) general denial; (2) that the injury was solely caused by the negligence of the deceased (3) contributory negligence. The jury rendered a verdict in favor of the defendant. This appeal is from the judgment entered thereon, upon numerous exceptions to the instructions given to the jury.

All the exceptions, except those raising the question to be hereafter noticed, are overruled. Some of them are of no practical importance, some are based upon a misconception of the requests and charge, and none of them show a case of reversible error, when the whole charge is considered.

The vital question in the case is presented by the fourth specification in the ninth exception and by the fifteenth exception, which complain of the instructions as to imputed negligence. A brief statement of the facts here is important to a correct understanding of the question. The evidence in behalf of plaintiff was to the effect that the plaintiff's intestate, Eugene Watson, was a child of plaintiff, about seven or eight years old; that on the 15th day of January, 1900, he was in company with an older sister and brother, whose ages are not given, and was attempting to cross a high trestle on defendant's railway, near the city of Abbeville, when defendant's train ran over him and killed him. The trestle was about 100 feet long. The older sister was with another person, and ahead of the deceased and his brother, who were crossing together, and she got safely over the trestle when she heard the coming train. She warned her brothers of the coming train, and they, being about halfway across the trestle, turned back. The deceased fell twice, and was helped up by his brother, and the third time fell, at which moment the train was very near, and the brother jumped from the trestle and escaped, but the deceased was run over and killed. There was some evidence in behalf of plaintiff tending to show that, if defendant kept a reasonable lookout, the peril of the deceased child must have been discovered in time to stop the train and avoid the killing. The evidence in behalf of defendant was to the effect that, as soon as defendant's servants discovered the presence of the children upon the trestle, they did everything that was possible to avert the collision.

The jury were instructed, in accordance with defendant's request, as follows: "If the jury believe from the evidence that the deceased at the time of the accident, as alleged, was in the company and care and custody of others of sufficient age and intelligence to appreciate the danger of trespassing upon the railroad track, and was thereby guilty of contributory negligence, then such contributory negligence can be imputed to the deceased, and contributory negligence to an extent which is one of the proximate causes of the accident will bar a recovery." The court further charged the jury: "It seems to me that if an adult person leads a child into a place of peril, and the adult person is a trespasser, then the rights of the child would be determined by the acts and knowledge of such adult person." There was no evidence that the parents of the deceased, for whose benefit this action was brought, had placed the deceased in the care and custody of any one. The charge, therefore, had reference to the testimony that the deceased at the time of the injury was in the company of his older sister or brother. The brother was helping the deceased in the attempt to cross the bridge, and doubtless the charge was intended to be made applicable to the circumstances. The doctrine of imputable contributory negligence, as applied to a child of such tender years as not to be guilty of personal negligence, seems to have originated in this country in the case of Hartfield v. Roper, 21 Wend. 615, 34 Am. Dec. 273, wherein an action in the child's name was held to be defeated by the contributory...