The opinion of the Court was delivered by
“This action was commenced on or about the --— day
of January, 1924, and came on for a hearing in the Court of Common Pleas at Dillon, S. C., at the October term of Court for 1924. Case actual and punitive damages arising out of an alleged collision at a public crossing between automobile of plaintiff and box car of defendant. Jury rendered a verdict for defendant.”
The exceptions complained of error on the part of the Circuit Judge, failure to submit to the jury the question of willfulness on the part of the defendant, and in his charge to the jury.
We find in 20 R. C. U, p. 145, paragraph 118, this:
“To establish willfulness it is said that the following named elements must be disclosed: (1) Knowledge-of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.”
Defendant knew this was a public crossing. Under the circumstances it was a question for the jury to consider the question of willfulness. Here we have a loose car shunted across a public crossing in a town, with no engine attached with or without proper equipment, such as proper brakes and train crew thereon, to guard the safety of the public.
As to the time of the accident and how it occured there is a conflict of evidence. Whether the car was equipped so as to protect the public was a question that should have been submitted.
If they could shunt one car they could shunt more.- In a town kicking or shunting á car across a public crossing is not to be commended and the question should have been submitted as to whether or not it was a disregard of what the consequences would be.
The question should have been submitted qs to whether or not it was a wanton and reckless action on the part of the defendant. If the plaintiff was
The exceptions are sustained, and a new trial granted.