October 10, 1921. The opinion of the Court was delivered by This is an appeal from judgment rendered and entered for $5,000. Plaintiff's intestate was killed at a crossing collision with one of the trains of C. W.C. Railway Company, operated by the defendant. The verdict of the jury was for actual damages. The exceptions, five in number, can be considered under the following heads:
Was it error on the part of his Honor in refusing to direct a verdict as moved for by the defendant? In making the motion defendant relied, in a large measure, on the case of Cable Piano Co. v. Southern Ry. Co.,94 S.C. 144, 77 S.E., 868. The facts of this case are very different from the facts of that case. In that case no other inference could be drawn than that it was the failure of the driver to look. This was the sole cause of the injury. In this case there was conflict of evidence, and that presents an entirely different situation. There is plenty of evidence that the driver of the car looked, and his view was cut off by the way the public road ran, and the way the railroad ran, and that his view was obstructed by a ridge and the contour of the land and weeds and bushes. There was evidence that the railroad did not give the statutory signals; this was negligence per se. There was evidence to be submitted to the jury for their proper determination as to who was negligent. *Page 520
The plaintiffs by evidence showed defendant was negligent; the defendant introduced evidence showing plaintiff's intestate was. This Court nor the Circuit Court is called upon to decide such issues when there is a conflict of evidence, and more than one inference can be drawn. The jury is the one to decide such issues. CablePiano Co. v. Railway, was decided upon the particular facts of that case; so was Callison v. Railway, 106 S.C. 123,90 S.E., 260; and every other case will be so decided. His Honor committed no error in refusing to direct a verdict.
Did his Honor restrict the defense to a want of slight care in his charge, and did he commit an error in his charge with reference to statutory signals, as complained of in exceptions 2 and 3? The charge taken as a whole could not have prejudiced the defendant as complained of. He read to the jury the statute (Civ. Code, §§ 3222, 3230) in reference to crossings. This was a compliance of law as decided in Mercer v. Railway,44 S.E., 750. His charge was full and clear, and did not deprive the defendant of the defense relied on, and he did not invade the province of the jury by a charge on fact or intimation that was prejudicial as to the force or effect of the evidence. He fully charged the law, and left to the jury to find the facts, uninfluenced in any way as to what he thought. The attention of the Court below was not called to the questions relied on in Exceptions 4 and 5. The points were not made in Circuit Court, and cannot be considered by us, but we will say in passing there was no merit in them.
All exceptions are overruled, and judgment affirmed.
MR. CHIEF JUSTICE GARY and MR. JUSTICE FRASER concur.