May 16, 1923. The opinion of the Court was delivered by This is an action for damages for the killing of the plaintiff's testator. The jury found for the plaintiff, and the defendant appealed. The appeal contends that there was no evidence of negligence on the part of the defendant, and conclusive evidence of contributory negligence.
Judge Moore, who heard the case on Circuit, gave his reasons for not granting a new trial as follows:
"Order Overruling Motion for New Trial.
"Upon the trial of this case the jury returned a verdict in favor of the plaintiff for $5,000. In due time the defendants noted a motion for a new trial upon five grounds, which were submitted in writing and filed in the record.
"The first three grounds stated in the motion for a new trial appear to me to be controlled by the principles announced by our Supreme Court in the cases of Jones v. Railroad Co., 61 S.E., 556; 39 S.E., 758. Sentell v. Southern Ry. Co.,70 S.C. 190; 49 S.E., 215. Webb v. A.C.L.R. R. Co.,105 S.C. 301; 89 S.E., 546, and the authorities therein cited. Under these cases it was my duty to submit the issues raised in the case to the jury for settlement, and the jury having found against defendant's contention upon the issues of fact submitted to them, and there being abundant testimony, if believed by the jury, to support the verdict returned, I see no reason why I should interfere with the verdict so rendered. The plaintiff offered various witnesses to establish *Page 480 the fact that the public had been using the foot path along the end of the crossties of the railroad continuously, uninterruptedly, and without objection from the railroad company since the date of the construction of the railroad, and the defendants offered no testimony to contradict that contention. The testimony further tended to show that plaintiff's testator was struck and killed by a locomotive engine while sitting on the end of a crosstie of the railroad track with his feet resting in the traveled place along the end thereof, and that the railroad track was perfectly straight and free of any obstructions for more than 400 yards, and that persons riding upon a locomotive engine approaching the place where plaintiff's testator was sitting could, by the exercise of ordinary care, have seen an object on said railroad track or by the side thereof for said distance. It was also brought out in the testimony that there were two public road crossings near the point at which plaintiff's testator was struck and killed, one of which was within about 400 yards, and the other within about 150 yards, of the place of the collision. Testimony was also offered on behalf of the plaintiff to show that no signals were given, either statutory or otherwise, although the engineer and fireman upon the locomotive did testify that crossing signals were given, and that they were looking, and that they did not see the man whom the testimony tended to show had been actually killed. There was no contention on the part of the defendants that any effort whatsoever was made to slacken the speed of or stop the train, so as to avoid injuring plaintiff's testator.
"The fourth ground upon which a new trial is asked complains that I failed to charge the jury that any negligence of the fireman, contributing to the injury as a proximate cause thereof, would not be binding upon the defendant engineer. I charged the jury that it was the duty of the fireman to keep a lookout, and that, if he failed to do so, it was negligence which would bind that railway company *Page 481 whose servant he was, but I did not charge that his negligence would bind the defendant engineer. No request was submitted upon the part of the defendant engineer to instruct the jury that the negligence of the fireman was not attributable to him, and therefore the question raised in this ground was not before the Court upon the trial of the case. The engineer could not have been prejudiced by any failure to give the instruction now contended for, for the reasons that the jury found that plaintiff's testator was killed by the locomotive engine at the time and place alleged in the complaint, and that the defendant engineer was in charge of said locomotive. The engineer testified that he did not see plaintiff's testator on track or close to it, and did not know that he had killed a person, and from that statement only two reasonable inferences are possible. One is that he was not keeping a lookout, as his duty required him to do so, or else, if keeping a lookout and seeing plaintiff's testator in a position of peril, he failed to use any care whatsoever for his safety. Besides it appears to me to be a notorious fact that the engineer is always in charge of the locomotive and the fireman thereof.
"As to the fifth ground of the motion, my attention has been called to no testimony from which any reasonable inference could have been drawn to sustain the allegation that the persons for whose benefit this action was brought were guilty of any negligence that contributed, even in a remote degree, to the death of plaintiff's testator. I cannot see that any of the grounds of the motion for a new trial are well taken. I am satisfied that the law of the case was correctly given the jury, and the issues of fact properly submitted to them for consideration, and, in my opinion, there is ample testimony to support the verdict returned by the jury. The motion for a new trial, therefore, is refused."
These reasons are entirely satisfactory to this Court. *Page 482
II. Contributory negligence is a question for the jury. The case of Davis v. Payne (S.C.),113 S.E., 326, does not sustain the appellant. In that case there was no evidence of negligence on the part of the defendant, and Miss Davis deliberately walked into a death trap.
The judgment is affirmed.
MR. CHIEF JUSTICE GARY and MR. JUSTICE WATTS concur.