Webb v. Atlantic Coast Line R. Co.

• Decision Date: 25 July 1916
• Docket Number: 8480.
• Citation: 89 S.E. 546,105 S.C. 300
• Parties: WEBB v. ATLANTIC COAST LINE R. CO.
• Court: South Carolina Supreme Court

89 S.E. 546

105 S.C. 300

WEBB v. ATLANTIC COAST LINE R. CO.

No. 8480.

Supreme Court of South Carolina

July 25, 1916

Appeal from Common Pleas Circuit Court of Richland County; John S Wilson, Judge.

Action by Sallie A. Webb, administratrix of the estate of Hiram C Webb, against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

P. A Willcox, of Florence, L. W. McLemore, of Sumter, and Barron McKay, Frierson & Moffatt, of Columbia, for appellant.

W. H. Cobb, of Columbia, for respondent.

HYDRICK J.

Hiram C. Webb, plaintiff's intestate, a carpenter about 60 years of age, was struck and killed by a locomotive engine drawing a freight train, while he was on defendant's track at a place where, according to the undisputed evidence, he was a licensee. He was in a well-beaten path along the railroad which had been used by the public with the knowledge and acquiescence of defendant for many years. Therefore defendant owed him the duty of exercising ordinary care to prevent his injury.

The testimony was conflicting as to whether Webb was sitting on the end of a cross-tie, or lying down, with his head between the cross-ties, and his body at right angles to the track, when he was first seen by the engineer. According to one of plaintiff's witnesses, he was sitting on the end of a tie, with his head bent forward in his hands, and was in that position when the engine, running about 20 miles an hour, was from 200 to 300 yards from him. If that was so, there is no room to doubt that he could have been seen in ample time to stop the train and prevent his injury. If, on the other hand, he was lying down with his head between the cross-ties, as the engineer testified, it is doubtful whether he could have been recognized as a man in a helpless condition in time to prevent his injury.

The engineer testified that the section hands were working the track, taking out old ties and putting in new ones, and that some of the old ties were pulled out and left with one end very near to the track; that he saw the body of the man about 300 yards ahead, in ample time to stop before striking him, and would have done so if he had not mistaken his body for a cross-tie; that he did not discover that it was the body of a man until he was within 100 yards, or probably less, maybe 150 or 200 feet, from him, and, when he did discover the fact, he made every effort to prevent injury to...