April 18, 1902. The opinion of the Court was delivered by *Page 21 The plaintiff, who is the administratrix of her deceased husband, John H. Haltiwanger, brought this action for damages against the Columbia, Newberry and Laurens Railroad Company, to recover damages occasioned by the killing of her said intestate by the alleged negligence of the defendant company. The undisputed facts are that said intestate, while walking along the track of defendant's railroad, at a point which was neither a railroad crossing nor a "traveled place," was struck by an engine drawing a passenger train of defendant company and instantly killed. At the close of the testimony on behalf of the plaintiff a motion for a nonsuit was made, based upon two grounds: "1st. That the testimony had tended to prove only that the deceased had been killed by defendant's train while he was walking along defendant's track at a place that was neither a `public crossing' nor `traveled place.' 2d. That there was no evidence tending to show that he was seen by the engineer running the train by which he was killed, or that he was in a position of apparent danger, consequently there was no testimony tending to show negligence on the part of the defendant company or its servants." This motion was refused and the trial proceeded, and at the close of the testimony and argument of counsel the Circuit Judge charged the jury as set forth in the "Case." The jury rendered a verdict for the plaintiff, and a motion for a new trial having been made and refused, judgment was entered, and from such judgment defendant appeals upon the several exceptions set out in the record. For a proper understanding of the points made by this appeal the Reporter will set out in his report of the case the charge of the Circuit Judge and the exceptions.
It will be observed that the exceptions raise three general questions: 1st. Whether there was error in refusing the motion for a nonsuit (exceptions 1, 2 and 3). 2d. Whether there was error in the charge of the Circuit Judge (exceptions 4, 5, 6, 7 and 8). 3d. Whether there was error in refusing the motion for a new trial (exception 9). We will *Page 22 proceed to consider these three general questions in their order.
First, as to the motion for a nonsuit. It will be noticed that the grounds upon which the motion was based were reduced to writing, and as set out above, make only the questions whether there was any testimony tending to show that the place where the intestate was killed was neither a public crossing nor a "traveled place;" and whether there was any testimony tending to show that the deceased was seen by the engineer running the train by which he was killed, or that he was in a position of apparent danger, and, consequently, whether there was any testimony tending to show negligence on the part of the defendant; but they do not make what we regard as the controlling question in this case, to wit: whether there was any testimony tending to show such negligence as would make the defendant liable for killing a trespasser on its track, inasmuch as the undisputed fact was that the intestate was killed while walking along the defendant's track, where there was no crossing and where it was not a "traveled place." Nor is such question made by either of the three exceptions (1, 2 and 3) imputing error in refusing the motion for a nonsuit. On the contrary, the grounds of the motion for a nonsuit, as reduced to writing, as required by the 18th Rule of the Circuit Court, as well as the exceptions just referred to, raise but two questions: 1st. Whether there was any testimony tending to show that the place where the intestate was killed, was either a public crossing or a "traveled place." 2d. Whether there was any testimony tending to show that the deceased "was seen by the engineer running the train by which he was killed, or that he was in a position of danger."
As to the first of these questions, while it is quite true that there was no testimony tending to show that the place where the intestate was killed, was either a public crossing or a "traveled place," yet that alone would not justify a nonsuit, for that would be to assume that a railroad company would not be held liable for injuring or killing *Page 23 a person at any point on its track, except at a public crossing or on a "traveled place" — a proposition which, certainly, cannot be sustained; for, as we shall presently see, a railroad company may be held liable for killing or injuring even a bald trespasser, at any point on its track under certain circumstances, which will hereinafter be adverted to.
As to the second of these questions, an examination of the "Case" shows that there was some testimony tending to show that the engineer did see the deceased on the track, and as a person walking on a railroad track in front of an approaching train is always "in a position of apparent danger," we think there was, at least, some evidence tending to show that the engineer running the train saw that the deceased was in a position of apparent danger; and, therefore, we are of opinion that there was no error in refusing the motion for a nonsuit upon either of the grounds upon which such motion was based. These exceptions are, therefore, overruled.
The second general exception — whether there was error in the charge of the Circuit Judge, as imputed thereto by exceptions 4, 5, 6, 7 and 8 — will next be considered. For a proper appreciation of the points made by these exceptions it will be necessary to recall some of the undisputed facts of this case. It is not, and indeed cannot be, pretended, that the place where the plaintiff's intestate was struck and killed was either a public crossing or a "traveled place," or that either the public or the intestate has ever acquired the legal right to use the track of the defendant company even as a footpath, at the point where the disaster occurred. The most that could be or was said, was that persons were in the habit of using the track at that point as a footpath, and that defendant company had taken no steps to manifest its objection to such use of its track. But that is not and cannot be claimed to have been sufficient to confer upon any person the legal right to use the track, at pleasure, as a footpath. It only amounts to this, that while the defendant company was legally entitled to the exclusive use of its track for the purpose of transporting *Page 24 the mail, passengers and freight, it did not churlishly forbid persons from walking along its track at such times as would not interfere with the running of its trains. In this case there was no testimony tending to show that either the public or the intestate had ever acquired the legal right to use the defendant's track at the point where the disaster occurred; indeed, there is no allegation to that effect in the complaint, and the jury were so instructed by the Circuit Judge. So that the case presented by the pleadings and evidence is one in which the intestate was killed at a point on defendant's track where he had no legal right to be, though he and others in that neighborhood had been in the habit of using the track at that point as a footpath, and had never been forbidden to do so by the defendant company; and the first inquiry is what, if any, duty did defendant company owe to the intestate under these circumstances, and what are the rules of law applicable to such a case? If one voluntarily goes upon the track of a railroad company, which is in daily, and sometimes hourly, use for the transportation of its trains, without legal authority, he becomes a trespasser, and the inquiry is narrowed down to the question, what duty, if any, does a railroad company owe to a trespasser on its track? This matter has been considered in the case ofSmalley v. Railroad Company, 57 S.C. 243, and the authorities cited. In Darwin v. Railroad Company, 23 S.C. at page 535, it was said: "It must be manifest that a railroad company does not owe the same duty to a trespasser that it does to a passenger, or one of its employees, though we do not go to the extent of holding, as some of the cases (citing the cases) seem to do, that a railroad company owes no duty to one who trespasses on its tracks, or unlawfully intrudes himself upon its engines or cars. No one can safely disregard the ordinary instincts of humanity, and shield himself from responsibility for an injury done, even to a trespasser, by its wanton or reckless disregard of such instincts." So, also, in the case of Hale v. Railroad Co., 34 S.C. 292, a case which, in one respect at least, is very much like the case under *Page 25 consideration, for there, as here, the disaster occurred at a point where there was neither a public crossing nor a "traveled place," but at a point where persons were accustomed to pass for their own convenience, and there was no evidence that they had even been forbidden or warned by the railroad company against so doing, the same doctrine was applied. In a note to Central Railroad c. Co. v. Vaughan, 30 Am.Rep., at page 54, Mr. Freeman, the learned editor, discusses the question as to what duty a railroad company owes to a trespasser on its track, and after saying: "that the company is responsible only for wilful or wanton injuries, or for injuries resulting from a degree of negligence equivalent thereto, is a principle regarding which there seems to be no disagreement (citing cases)," states the true doctrine as follows: "The true principle, it is conceived, is, that the engineer should see that the track is clear; but that when an obstruction is perceived, the proper course to adopt will depend upon whether it is a living or inanimate object, whether it is an intelligent human being, under ordinary circumstances, of discerning the means of securing safety, or a brute, which has no guide but mere instinct. If the object seen is an intelligent human being, it seems to be generally agreed that the engineer has a right to presume that he will get out of harm's way before the engine reaches him, and that it is not negligence to act upon that presumption" — citing the cases. To the same effect, see 19 Am. Eng. Ency. of Law, 935-937, and also 3 Elliott on Railroads, sec. 1253. All these authorities are cited, with approval, in Smalley v.Railroad Co., supra. Looking at the charge of the Circuit Judge in the light of these well settled doctrines, it seems to us that he has failed to discriminate between the measure of the duty which a railroad company owes to a passenger or to one rightfully upon its track, and that which it owes to one who is on its main track without any legal authority; in the former case a much higher degree of care being required than in the latter. That this distinction was ignored by the Circuit Judge is clearly pointed out in those portions of the *Page 26 charge quoted in the several exceptions to the charge mentioned above, and this is emphasized by the language used by the Circuit Judge in his order refusing the motion for a new trial, where, in speaking of the proposition contended for by counsel for the defendant, "That the action can be maintainedonly by proof that the alleged injury to the deceased was caused by the grossly negligent or wanton conduct of the engineer, or other agent of the company, in the running of the train," he said: "That is not my conception of the law," showing very clearly that the Circuit Judge was of opinion, which he impressed upon the jury, especially in his comments upon and modifications of defendant's requests to charge, as set forth in exceptions 6, 7 and 8, as well as in charging plaintiff's requests to charge, as set forth in exceptions 4 and 5, that to entitle the plaintiff to recover, it was not necessary to prove that the killing of the intestate was wilful or wanton, or was the result of such gross negligence as would amount to a reckless disregard of human life, which was in direct conflict with the well settled rule, as shown by the authorities above cited. These exceptions are sustained.
The ninth exception must be overruled, as it has been held in a number of cases that in an appeal from a motion either granting or refusing a new trial, this Court has no jurisdiction to pass upon the weight or the effect of the evidence.
The judgment of this Court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for a new trial.
On petition for rehearing, the following order was filed April 18, 1902:
On examination of this petition, it fails to satisfy us that any material facts or principle of law have either been overlooked or disregarded. Hence there is no ground for a rehearing. *Page 27
It is, therefore, ordered, that the petition be dismissed and the stay of remittitur heretofore granted be revoked.