April 25, 1922. The opinion of the Court was delivered by The appellant's argument states:
"On May 19, 1920, plaintiff was working for the Greenwood County highway commission, building roads, and one of his teams approached a crossing below the city of Greenwood, not for the purpose of crossing, but for the purpose of going down the track and loading the wagon from a box car. One of the mules was struck and killed. A verdict of $350 was returned in favor of the plaintiff, from which verdict this appeal was taken."
ARGUMENT "There are three exceptions. The first two exceptions allege error on the part of his Honor in overruling motion for a directed verdict. His Honor charged the jury that the law with reference to the statutory signals applied to this case, and overruled the motion for a directed verdict. It seems to us that this case is not governed by the crossing statutes, as the plaintiff's driver was not there for the purpose of using the crossing to cross over the railroad track, but going down the railroad track on the same side from which he approached." *Page 455
I. One of the plaintiff's witnesses testified:
"I was superintendent for W.A. Goode in May, 1920. We were contractors constructing roads in Greenwood County. I was present on the morning of this collision. That was down about Mr. Evans' mill. We had a carload of pipe, and we went down to unload it at Evans' mill. We had three wagons. I was driving one wagon in front, and two negroes in the other two wagons were behind me. I found that we would have to unload between the switch and the main line. We drove up on the crossing, across the switch track, and turned down between the main line and the switch track. The cars were about 200 feet from the crossing. I did not go across the main line. I went across the switch, and no train was in sight when I crossed. I went to the car and turned around, and Davenport, the second man, had come down in there with his team, and Hobson, with a third wagon, was on behind. When I looked around, this fellow Hobson was having trouble with his mules. They didn't want to come down between the tracks, but wanted to go straight across. His mules were on the track and he couldn't get them off. I jumped off and started to run back down there, and by the time I got there the train hit the mules; killed one, and knocked the other down. I don't know who placed the car on that crossing, and don't know whether it is a private track or a public track. It was a spur track of the Southern Railroad. It is a public crossing that crosses the main line and the switch. Just before reaching the main line, we had to turn sharply to the left. In order to make the turn, you would have to cross the switch track and let the mules walk on the main line to make that turn."
It will be seen that there was testimony to show that the plaintiff's team was using the crossing as a part of the highway and the crossing rule applies. *Page 456
II. The second question is thus stated in appellant's argument:
"Perhaps the most serious question in the case is raised in the third exception, in which his Honor charged that, where live stock is killed upon the railroad company's track, the law presumes negligence on the part of the railroad company. His Honor was charging the law as laid down in the Danner's Case, 4 Rich., 329, 55 Am. Dec., 678. His Honor, in our opinion, was clearly in error in charging the law of the Danner's Case, as this was a team in charge of a driver."
The case of Mack v. Railroad Co., 52 S.C. 323,29 S.E., 905, is conclusive. At pages 343 and 344, of 52 S.C. (29 S.E., 912), we find:
"The killing of the mule by the defendant raised the presumption of negligence on the part of the defendant and this presumption continues until it is rebutted by the testimony. The fact that the witnesses were examined by plaintiff in regard to the killing of the mule did not destroy the presumption arising from the mere fact of killing nor prevent the application of that rule."
In the Mack Case the mule was in charge of a driver. The Mack Case is conclusive and binding.
There was no error and the judgment was affirmed.
MR. CHIEF JUSTICE GARY and MR. JUSTICE WATTS concur.