Woodward v. Southern Ry., Carolina Division

• Decision Date: 21 December 1911
• Parties: WOODWARD v. SOUTHERN RY., CAROLINA DIVISION.
• Court: South Carolina Supreme Court

73 S.E. 79

90 S.C. 262

WOODWARD v. SOUTHERN RY., CAROLINA DIVISION.

Supreme Court of South Carolina

December 21, 1911

Appeal from common Pleas Circuit Court of Aiken County; R. W Memminger, Judge.

Action by Mrs. Lizzie Woodward, as administratrix of the estate of Hamp Woodward, deceased, against the Southern Railway Carolina Division. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

J. B Salley, for appellant. Hendersons, for respondent.

JONES C.J.

This is an appeal from an order of nonsuit in an action for damages for death of plaintiff's intestate caused by alleged negligence of defendant. It appears that Hamp Woodward on Sunday morning, September 6, 1908, was found dead lying on the north side of defendant's track 820 yards east of its depot at Montmorenci in Aiken county. The deceased was lying on his back, his body at right angle with the track and across the path alongside the track and his head between the ends of two cross-ties, about on a level with the ties, some inches from the out edge of the rail. There were two wounds upon his head, one from the middle of the forehead cutting off much of the right side of the head and breaking the skull. The other was a three-cornered wound on the left side near back of the head fracturing the skull. These two wounds were separate. The left side of the face was in a blood shot condition, and the back of the body was dark blue. The hat of deceased was found some feet from the body in the direction of Montmorenci with the crown in a torn condition in front and on right side. The deceased lived near defendant's track about one mile east of Montmorenci where he conducted a farm, and he also carried on a fish and butcher business in Montmorenci. On the night of September 5th he left Montmorenci to go home a short time before the arrival of the defendant's passenger train from Charleston to Augusta due at Montmorenci about 9:30 p. m. He was last seen alive talking to the section master in the public road not far from Montmorenci depot eight or ten minutes before the arrival of the train, when he started for home on the public road. The night was cloudy, dark, and rainy. Between the depot and the spot where the body was found there was a low place where the water settled, which caused the public road paralleling the railroad to become wet and sloppy, which pedestrians could avoid by using the railroad track. There was a public road on both sides of the railroad, and on each side of the track there was a smooth well-beaten path. There was some testimony tending to show that the place where deceased met his death was a thickly settled country community on the edge of Montmorenci, and that the public since the building of the railroad in 1830 had been accustomed to use the track as a pathway, notwithstanding the signboards placed at the crossings by the defendant some years previous to the death of intestate forbidding such use.

There was testimony that the engine was being operated that night without a headlight, having run from Whitepond by Montmorenci to Aiken, 27 miles, without such light, and that at Aiken the engineer placed a lantern in front for a light on the protest of a policeman. It was in testimony, also, that the train was running behind schedule time, and that the speed near the place where the body was found was 45 miles an hour, and that no signal was given at Humphrey's crossing, not far east from where the body was found. For a considerable distance before reaching this spot the track was straight and downgrade. It is alleged that the train...