Williams v. Seabd. Air Line Ry

• Decision Date: 12 January 1907
• Citation: 56 S.E. 652,76 S.C. 1
• Parties: WILLIAMS. v. SEABOARD AIR LINE RY.
• Court: South Carolina Supreme Court

76 S.C. 1

56 S.E. 652

WILLIAMS.

v.SEABOARD AIR LINE RY.

Supreme Court of South Carolina.

Jan. 12, 1907.

Trial—Failure to Instruct—Necessity of Requests.

In an action under Civ. Code 1902, § 2183, providing that a railroad at a highway crossing shall protect its rails so as to secure a safe passage over its road, where the judge charges as to the issues raised by the pleadings, and reads the statute, it is not error to fail to instruct that failure to comply with the section is negligence per se; there being no request so to charge.

[Ed. Note.—For cases in point, see Cent Dig. vol. 46, Trial, § 627.]

Appeal from Common Pleas Circuit Court of Kershaw County; Hydrick, Judge.

Action by W. W. Williams against the Seaboard Air Line Railway. Judgment for defendant. Plaintiff appeals. Affirmed.

Clarke & Von Tresckow, for appellant.

Stevenson & Matheson and Edward Mclver, for respondent

GARY, A. J. The appeal herein raises the question whether there was error on the part of his honor, the presiding judge, in not charging certain propositions of law, when no requests to that effect were presented. The allegations of the complaint, material to the questions involved, are as follows: "That on the ninth day of October, A. D. 1905, plaintiff was riding a horse along the highway known as 'DeKalb street, ' in a westerly direction, and when he arrived at the place where said highway crosses said railroad, the foot or feet of the horse upon which plaintiff was riding struck said unguarded and unprotected rail, and violently threw plaintiff and said horse to the ground, and plaintiff's left leg was caught under said horse and fractured and broken. That said Seaboard Air Line Railway was in default and did violate and fail to observe and discharge that plain duty which It owed to plaintiff while riding along said highway, In this, in carelessly and negligently failing to guard and protect Its rails by plank, timber, or otherwise, so as to secure a safe and easy passage across its road for plaintiff, and allowing said crossing to be andremain in a defective and unsafe condition. That the injuries of said Walter W. Williams were caused by the carelessness and negligence of defendant as aforesaid." The defendant denied the allegations of the complaint and set up the defense of contributory negligence. The presiding judge charged the jury fully upon the question of negligence, but did not charge as to the effect of section 2183 of the Code of Laws of 1902.

The jury rendered a...