BAKER, CJ., dissenting. May 30, 1947. This is an appeal from Greenville County and the case involved an alleged injury to plaintiff who was at the time walking across a trestle on the railroad of the defendant company. The injury came about when a string of cars, detached from the locomotive, overtook and ran over plaintiff. The plaintiff alleged willfulness, wantonness, recklessness and negligence on the part of defendant, its agent and servant; and the defendant, answering, admitted the plaintiff was struck and injured by one of its trains while attempting to cross the trestle maintained by the defendant, but denied that the injury was caused in the manner and circumstances alleged; and on the contrary, set up that his said injury was due to plaintiff's own willfulness, wantonness, recklessness and negligence, combining and concurring with the said willfulness, wantonness, recklessness and negligence of the defendant, without which the injury would not have occurred. The case was tried at the June, 1946 term, and the jury's verdict was $5,000.00 actual damages.
In due course defendant moved for a non-suit, directed verdict and for judgment for the defendants non obstanteveredicto, all of which were denied.
Notice of intention to appeal was duly given, and thereafter this appeal was perfected listing five exceptions, which, however, defendant states in its brief, raise only two questions;viz., whether the Court should have granted defendant's motion for non-suit and directed verdict (1) since the evidence failed to show any actual negligence on part of defendant, (2) since the evidence was susceptible of no other reasonable inference than that plaintiff was himself *Page 446 guilty of contributory negligence which operated as a proximate cause of his injury.
The facts gleaned from the record are as follows:
The trestle upon which the accident occurred was in the freight yards of the defendant railroad. It appeared that this trestle which had alongside of it a walkway, the adequacy of which was questioned, was admittedly used by the public as a convenient means of passage. The episode involved in this action occurred at night and shortly prior thereto, the train crew of the train which later ran over plaintiff, observed him as he passed along the track where the crew had congregated in a moment's idleness about the locomotive. Plaintiff proceeded along the track some little distance and until he was upon the trestle involved. At that time the train of freight cars, which had been detached from the locomotive for the purpose of effecting some switching operation, and, according to the trainmen, was lighted by flares or fuses, in addition to which the trainmen who were stationed on the front and carried electric torches, overtook plaintiff from the rear and ran over him. These freight cars had no audible mechanical signal such as bell or whistle, for use in warning persons on or about the track, but the defendant depended upon the flares and torches and vocal warnings to give notice of the approach of the cars. As the cars approached plaintiff, he was observed by the trainmen on the track about 50 yards ahead, and, as they expressed it, they "hollered" a warning at the plaintiff, who thereupon looked back, and to quote the trainmen again, began a "zig-zag" attempt to escape, and in so doing, fell across the tracks and the cars ran over him, with the resulting injury. The trainmen testified that the cars, as they rounded a curve in the tracks near by, emitted a noise occasioned by the friction of the wheels against the track and the drawheads working against each other. No attempt to apply brakes was made and none of the trainmen were stationed at the hand brakes. Plaintiff testified the *Page 447 first information he had of the approach of the cars was some one calling "look out."
There was some testimony that plaintiff had the odor of alcohol on his breath after the accident and a partially consumed pint bottle of whiskey was found near his person at the scene. He testified that he had consumed two glasses of beer and that he had drunk no whiskey. The plaintiff testified that he was not under the influence of intoxicants.
Construing this testimony most strongly against the defendant, as is the rule where motions for a non-suit and directed verdict are concerned, it is the opinion of this Court that same was sufficient to warrant submission of the case to the jury and that the motions were properly refused. The exceptions are accordingly overruled and the action of the lower Court affirmed.
Judgment affirmed.
FISHBURNE, STUKES and OXNER, JJ., concur.
BAKER, CJ., dissents.