The opinion in this case was filed January 19, but on petition for rehearing, remittitur was held up until *Page 61
February 5, 1907. The opinion of the Court was delivered by This is an action for damages alleged to have been sustained by the plaintiff, while climbing between two freight cars across a street, in the city of Spartanburg.
The facts are thus set out in the complaint: "That on the 20th day of June, 1903, the defendant negligently and unlawfully allowed one of its trains to stop for an unreasonable time, fifteen or twenty minutes, across Magnolia street, one of the principal streets of the city of Spartanburg, to the great inconvenience and annoyance of those using the street, including this plaintiff, in violation of his right to said street, and in violation of the ordinance of said city which prohibited the blocking of said public crossing, for a longer period than five minutes.
"That on said day plaintiff was going along said street, and coming to said crossing found it blocked, as aforesaid, by defendant's train. That after waiting a considerable time, the train not moving, and plaintiff being anxious to get out of the rain, also being very unwell, he had to go over said crossing and along said street, by going between two of the cars of said train over the bumpers, which were standing motionless as aforesaid. That while in such act, without any notice or warning, without sounding a whistle or ringing a bell, disregarding the statute law of this State, the defendant company, through its agents and servants, in charge of said train, negligently, unlawfully, recklessly, wantonly, and in utter disregard of plaintiff, caused said train of cars to suddenly and quickly start and move, thereby throwing him down upon its railroad track, running its wheels over his foot, crushing and mangling it and cutting it off, to his great suffering and injury, and to his damage in the sum of two thousand dollars."
The defendant denied all the allegations of the complaint except the corporate existence of the defendant, and the injury *Page 62 of the plaintiff while climbing between the cars, and alleged that: "on the occasion named it was carrying on its business in a lawful way in its yard in the city of Spartanburg, and that while so doing, and after the gates were down — which said gates, under the ordinances of the city of Spartanburg, it was required to keep, maintain and operate across its streets when trains were on said streets — the plaintiff herein, after he knew — or ought to have known — that said gates were down, carelessly and negligently attempted to pass between two of the defendant's cars, to which an engine was hitched, and after he knew that it was likely that said cars would be moved at any moment, and while so doing, in a careless and negligent manner, was injured by the movement of said train in a lawful manner, and that the injury which was received by plaintiff on the said occasion was caused by his own carelessness and negligence in attempting to pass between the two said cars, after he knew — or could have known by the exercise of ordinary and due care and caution — that said train would likely move at any moment, and after due warning had been given that the train, which was then on and across said streets, was there only temporarily, and that it was the intention that the same should be moved at any moment, and that the carelessness and negligence of the plaintiff in so attempting to pass between the said cars, which he knew, or ought to have known, was a dangerous act — caused and contributed to the injury aforesaid."
The jury rendered a verdict in favor of the plaintiff for $500, whereupon the defendant appealed upon exceptions which will be incorporate in the report of the case.
The first question that will be considered is whether his Honor, the presiding Judge, erred in ruling that the plaintiff could introduce evidence to the effect that other persons climbed between the cars and why they did so. The appellant's attorneys realize the fact that the case ofThomasson v. Ry., 72 S.C. 1, 51 S.E., 443, sustains said ruling, but asked permission, which was granted, *Page 63 to review that case. After careful consideration, the Court adheres to its former ruling.
The next question for consideration is whether the presiding Judge erred in refusing certain requests mentioned in the exceptions on the ground that they were a charge upon the facts. The rule when facts should be submitted to the jury is thus clearly stated in 16 A. E. Enc. of Law, 465, et seq., and quoted with approval in Rinake v. Victor Ma'f'g. Co., 55 S.C. 179,32 S.E., 983, and Wood v. Ma'f'g. Co., 66 S.C. 482, to wit: "The general rule is well known that questions of fact are to be submitted to the jury, and this includes not only cases when the facts are in dispute, but also when the question is as to inference to be drawn from such facts after they have been determined. It will readily be observed that few cases will arise in which there is no question as to the facts involved; the element of ordinary care must from its very character always require the decision of a jury, except where there is a violation of statutory duty or when the facts are undisputed and but one inference can be reasonably drawn from them. And the same is equally true as to the determination of the question of proximate cause, so that the following rules may be stated as applicable to every case. The issue of negligence should go to a jury: 1. When the facts, which, if true, would constitute evidence of negligence, are controverted. 2. When such facts are not disputed, but there may be a fair difference of opinion as to whether the inference of negligence should be drawn. 3. When the facts are in dispute and the inferences to be drawn therefrom are doubtful."
In Lampley v. R.R., 71 S.C. 156, 50 S.E., 773, the Court says: "Negligence is a mixed question of law and fact. It is the duty of the Court to define negligence, but the jury must draw the inference from the facts in each case." *Page 64
The presiding Judge could not have charged the said requests without intimating to the jury the inference to be drawn from the facts therein so carefully set out in detail. The instructions would have been in violation of art. V., sec. 26, of the Constitution, and were, therefore, properly refused.
We proceed next to consider whether there was error on the part of the presiding Judge in construing sections 2132 and 2139 of the Code of Laws, which are as follows:
"Sec. 2132. A bell of at least thirty pounds weight and a steam whistle shall be placed on each locomotive engine, and such bell shall be rung, or such whistle sounded, by the engineer or fireman, at the distance of at least five hundred yards from the place where the railroad crosses any public highway or street or traveled place, and be kept ringing or whistling until the engine has crossed such highway or street or traveled place; and if such engine or cars shall be at a standstill within a less distance than one hundred rods of such crossing such bell shall be rung, or such whistle sounded, for at least thirty seconds before such engine shall be moved; and shall be kept ringing or sounding until such engine shall have crossed such public highway or street or traveled place."
"Sec. 2139. If a person is injured in his person or property by collision with the engines or cars of a railroad corporation at a crossing, and it appears that the corporation neglected to give the signals required by this chapter, and that such conduct contributed to the injury, the corporation shall be liable for all damages caused by the collision, or to a fine recoverable by indictment, as provided in the preceding section, unless it is shown that, in addition to a mere want of ordinary care, the person injured, or the person having charge of his person or property, was, at the time of the collision, guilty of gross or wilful negligence, or was acting in violation of the law; and that such gross or wilful negligence or unlawful act contributed to the injury." *Page 65
The first assignment of error is, that the presiding Judge ignored the provision of the statute, which requires the plaintiff to prove, not only the failure of the defendant to comply with the statute, but that such failure contributed to the injury as a proximate cause.
At the time the Circuit Judge used the language set out in the exceptions, he was not specially discussing this feature of the statute, but the effect of a lack of ordinary care and gross negligence, on the part of a person injured at a crossing.
He, however, charged the defendant's first request, which was as follows: "Proof of the mere failure to ring the bell or sound the whistle, as required by the statute, before moving cars which may be across a street is not of itself sufficient to warrant a recovery for an injury received by one, while attempting to climb over or between two of such cars, but in order to warrant such recovery the evidence should go further and show that this failure to give the signals required by the statute contributed as a proximate cause to the injury complained of, and if the evidence does not show not only that the signals were not given, but that the failure to give them did contribute as a proximate cause to the injury, then there can be no recovery and the verdict should be for the defendant."
The last question for determination is, whether the Circuit Judge erred in charging that if the defendant failed to comply with the foregoing statutory requirement the plaintiff was entitled to recover, unless it was shown that he was guilty of gross or wilful negligence or was acting in violation of law, and that such negligence or violation of law contributed to the injury.
The appellant, in effect, contends that the lowering of the gates gave warning of the dangerous condition of the track and dispensed with the necessity to comply with the statutory requirements as to ringing the bell or sounding the whistle, at least thirty seconds before the engine was moved when it was at a standstill, within a less distance than one *Page 66 hundred rods of the crossing; and that the plaintiff under such circumstances cannot recover if he failed to exercise ordinary care, and such failure contributed to the injury.
There are cases in which the law will dispense with the necessity for compliance with the statutory signals at a crossing; and then it is not necessary for the railroad company to show that the party injured was guilty of gross negligence or was acting in violation of the law; as for instance, when a person sees the train approaching a crossing in ample time to avoid the danger of a collision. The reason is because he possesses all the information which the ringing of the bell or the sounding of the whistle was intended to give.
The vital question in this case, therefore, is, whether the lowering of the gates afforded the plaintiff the information, which the ringing of the bell or the sounding of the whistle for thirty seconds before the train moved would have given him.
The lowering of the gates was a general warning of danger at that time in attempting to cross the track, but it did not give any specific information as to the time when the train would move. While, on the other hand, the statute was intended to inform those about to use the crossing, of the specific fact that the train would not move within thirty seconds.
A person who sees a train across a highway knows that it is dangerous to attempt to cross the track at that time; and while the lowering of the gates accentuated this fact, it does not give any particular information.
Therefore, the notice arising from the lowering of the gates did not afford protection equal to that intended by the statute, and does not supersede the necessity for complying with its requirements.
Although the erection of the gates did not supersede the necessity of complying with the requirements of the statute, nevertheless when the warning which they give is ignored. *Page 67 it strongly tends to show gross negligence on the part of the person injured.
These view practically dispose of all the questions presented by the exceptions.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.
February 5, 1907.