Appeal
from Common Pleas Circuit Court of York County; Ernest Moore
Special Judge.
GARY
C.J.
This is
an action for damages alleged to have been sustained on
account of the wrongful acts of the defendants in causing the
death of plaintiff's intestate.
The
allegations of the complaint, material to the questions
involved, are as follows:
"(1)
That heretofore, to wit, on the 31st day of October, 1906
one D. Rainey Wilson embarked as a passenger on a train of
the defendant Southern Railway Company on said line of
railway, of which train the defendant Ed. S. Mott was
conductor and in charge, for passage from Columbia to
Smith's Turnout, and paid his fare to that point, and
notified the defendant Southern Railway Company, its officers and agents, of his wish to leave said
train at that point, but was carried past said station to
Ogden, near which station said D. Rainey Wilson, at the
invitation of the agents of the defendant Southern Railway
Company, alighted from said train, and was seen afterwards
while still on the premises of the defendant Southern
Railway Company as a passenger, and while leaving the same
for his home, and proceeding to make use of the nearest
highway crossing for that purpose, was struck by another
train of said Southern Railway Company operated in a
wantonly, reckless, and negligent manner, was thereby
horribly mangled and killed almost instantly, to the damage
of the plaintiff and those for whom he sues, $20,000. (2)
That the death of the said D. Rainey Wilson as aforesaid
was caused by the willful, wanton, and negligent conduct
omissions, and derelictions of the defendant Southern
Railway Company, its servants and agents, as proximate
causes thereof (a) in failing to notify the said D. Rainey
Wilson of the approach to and arrival at his destination of
said train on which he was a passenger; (b) in stopping the
said train at Ogden in a dangerous and unusual place, and
there inviting the said D. Rainey Wilson to alight; (c) in
operating the train that struck the said D. Rainey Wilson
in a willful, wanton, reckless, and negligent manner, in
failing to give the signals required by law at highway
crossings; (d) in failing to give the said D. Rainey Wilson
a reasonable opportunity to alight at his destination, and
by the joint and concurrent willfulness, wantonness, and
negligence of the defendants in failing to notify the said
D. Rainey Wilson of the arrival of the train on which he
was riding at his destination, and in stopping said train
at a dangerous and unusual place at Ogden, and inviting
said D. Rainey Wilson there to alight, as proximate causes
of said death."
The
defendants served separate answers to the complaint, and
merely interposed a general denial of its allegations. At the close of the plaintiff's testimony, the
defendants made a motion for a nonsuit, on the ground that
the undisputed evidence showed that the plaintiff's
intestate was a trespasser, and that there was no testimony
tending to show the breach of any duty which the defendants
owed him as such.
In
granting the motion for a nonsuit, his honor, the presiding
judge, assigned the following reasons: "I will have to
grant the motion for a nonsuit. I don't think there is
any evidence of such willfulness, wantonness, or recklessness
as would make them responsible to a man who was a trespasser
on the track, and I think the evidence tends to show, and
only tends to show, that at the time he was struck the
deceased had ceased to be a passenger." (Italics ours.)
The
appellant's first and second exceptions assign error on
the part of his honor, the presiding judge, in holding:
"That the deceased was a trespasser on the track of the
defendant, when the questions should have been left to the
jury, there being some evidence tending to show that said
deceased was a passenger, or at least a licensee. That the
evidence tends to show, and only tends to show, that the
deceased had ceased to be a passenger, although it appeared
by
the evidence that he had been wrongfully carried past his
destination, and discharged at the wrong station, and while
in the act of returning to his proper destination was struck
without warning, or even being seen by those operating the
passenger train; the status of the deceased at the time of
the injury thus being a question of fact for the jury."
There was testimony to the effect that the plaintiff's
intestate purchased a ticket to Smith's Turnout, but that
the defendant failed to give him notice of the station, when
the train arrived at that point, and he was carried to Ogden,
the next station, which was about three miles from
Smith's Turnout; that the train ran into a side track at
Ogden, where it remained about 30 minutes, waiting for the
train to pass, which was going in an opposite
direction; that plaintiff's intestate was drinking
heavily, after leaving Columbia, where he had gone that
morning to attend the Agricultural Fair; that, when the
expected train arrived, it failed to give the required
signals in approaching the station; that plaintiff's
intestate left the train upon which he was a passenger before
the expected train arrived, and was not seen alive
thereafter, but one of his legs was discovered about 300 or
400 yards from the station on the railroad track, in the
direction of Smith's Turnout, the main part of his body
was also found upon the railroad track, about 50 yards nearer
Smith's Turnout, and other parts of his body were
scattered along the railroad track for several hundred yards
nearer Smith's Turnout; that there is a path near where
the leg was found, leading from the dirt road to the railroad
track, and which has been used for years by those approaching
and leaving the station.
The
following testimony of Wm. C. Pearson, a witness for the
plaintiff, is explanatory of this locality: "Q. Do you
know where that path comes up from that neighborhood road to
the depot? A. Yes, sir. Q. How long has that been used Mr
Pearson? A. Oh, ever since I can mind. Q. What did you say?
A. I guess about 10 or 15 years. That is as far as I can mind
about it. Q. ...
