July 28, 1915. The opinion of the Court was delivered by This is an action for personal injury. There are three exceptions, but they require the decision of only one question.
The complaint alleges that the injury was caused by the negligence, recklessness and willfulness of the defendant. The defendant pleaded, among other things, contributory negligence.
It is manifest that if there was evidence from which the jury might have inferred recklessness and wilfulness, the question of contributory negligence need not be considered.
There was evidence that tended to show that the plaintiff, with another man, was walking along a public highway that crossed the line of defendant's road and that while *Page 398 crossing the defendant's road he was struck by the forward end of defendant's car. That there was an engine on the Southern Railway that was near the crossing and above the defendant's road; that there was an abutment on the line of the Southern Railway that obstructed the view of the approach of defendant's car from travelers on the public highway until they were within forty-five feet of defendant's track; that defendant's car was run across the public highway at high speed; that no signals of its approach were given; that the motorman did not see the plaintiff or his companion and did not know that he had struck the plaintiff until after the car arrived at its destination, and then was informed by telephone.
There was conflicting testimony, but there was testimony to support a finding that there was recklessness and wilfulness.
It may be said that the jury found only actual damages, and, therefore, the finding negatived recklessness and wilfulness. The testimony was conflicting, and while the jury might not have found that there was a preponderance of the testimony in favor of the plaintiff on this issue, contributory negligence is an affirmative defense, and on that issue the defendant must make out its defense by the preponderance of the testimony and show that its defense was available.
"It may be said that wantonness and wilfulness has been eliminated from the case. As a foundation for punitive damages, they were eliminated from the case, but the defendant was still required to make out its affirmative defense of contributory negligence, and if the facts subsequently proven showed wilfulness, the plea could not prevail."Carter v. Ry., 93 S.C. 329, 341, 79 S.E. 552.
*Page 399The judgment appealed from is affirmed.