The opinion of the Court was delivered by
Mr. Justice Gary.
This is an action for damages alleged to have been sustained by the plaintiff through the negligence of the defendant in cutting off both his legs with its train of cars at Greenwood, S. C., on the 13th of April, 1900. In order to- understand clearly the facts o'ut of which the controversy arose and the issues involved under the pleadings, it will be necessary to refer to- the complaint and answer, which will be incorporated in the report of the case. The jury rendered a verdict in favor of the plaintiff for $1,200.
1
The defendant appealed upon exceptions, the first of which is as follows : “I. The presiding Judge erred in charging the jury as follows: ‘Now, persons may acquire the right to- go upon the property of others by the public continually using or going upon such property, or openly and adversely,
i. e.,
in- open opposition to any will or permission or license of the owner o-f the property, such going if -continuous for a sufficient or long period to raise the presumption of law-that such right does exist. A man may
acquire the right to pass across the lands of another where he, -in open violation, knowing that he is acting in open, violation of the rights of the owner of the property, and where he does so with the knowledge, with notice to. the owner that he is acting in open violation of the rights of the owner, or where he does so in such a notorious manner that the owner may be presumed to know that he is so violating his rights— if he does that as long as twenty years, the law will raise the presumption that he has the right to go> there, and under those circumstances he would cease to be a trespasser, if he has established a prescriptive right, as it is called, to go upon or pass over the property of another; and that principle applies to the property of a railroad company, to its track, just as much as it does to the private lands of individuals.’ The errors assigned being as follows: (i) The plaintiff made no claim in his complaint to a right by prescription to. walk upon the track; the law declared by the Court was, therefore, inapplicable. (2) The complaint alleges permission by the defendant to the public to use it's track. This is inconsistent with the idea of right by prescription, and for this reason, also, the law was inapplicable. (3) To constitute a prescriptive right to a way, the use must have been open, adverse, exclusive and accompanied by some act of the owner which shows a recognition on his part of the right of the claimant to use the way without his permission. The charge is not consistent with this proposition. (4) The use must have been adverse, and knowledge on the part of the owner that the use is adverse cannot be presumed from the notorious character of the use. The Circuit Judge, therefore, erred in charging the jury that a man may acquire the right to pass over the land of another ‘where he does so in such a notorious manner that .the owner may be presumed to- know that he is violating his rights.’ (5) There is no evidence showing that the use of the track as alleged in the complaint by the public was adverse to the right of the railway company, or that it was accompanied by such facts and circumstances as show that it was claimed as a right exercised
without the consent and in opposition to the rights of the railway company. The charge was, therefore, inapplicable and misleading. (6) A right to use the track of a railway company as a footpath cannot be acquired by prescription. (7) The right claimed by the plaintiff was to- get upon the railway track, cross a trestle spanning a cut and continue down the track a distance of fifty yards to a certain foot bridge. -Such right cannot be acquired by prescription, and there was no pleading or testimony making the charge applicable to the case. (8) Prescription rests upon presumption of a grant. A railroad being a public highway, it would be unlawful to grant the use of its track as a footpath. A presumption of an illegal act cannot be sustained.” When the charge is considered in its entirety, it will be seen that it is very full and clear upon the issues raised by the pleadings. No question of a right by prescription was involved under the pleadings, nor was there any testimony whatever sustaining such right. In the exception it is stated that “there was no pleadings or testimony making the charge applicable to the case.” The right by prescription is entirely separate and distinct from that set out in the complaint — one being founded upon an adverse and the other upon a permissive claim. Under .these circumstances, even if there was error in the charge as to a prescriptive right, we do not feel justified in remanding the case for a new trial on this ground. Realizing that is is almost too much to- expect that during the progress of a long trial, in which many -questions were presented, errors will not be committed, the Court is not inclined to grant a new trial, unless it is satisfied ithat there is a reasonable ground for supposing the error may have effected the verdict, which it- is not satisfied exists in this case.
2
The second exception is as follows: “II. The presiding Judge erred in charging the jury that the plaintiff would be entitled to a verdict if they came to the conclusion that the defendant wilfully inflicted injury upon the plaintiff. It is submitted that the action was based upon ordinary negligence, and that a recovery for a wilful tort
should not have been allowed.” The complaint alleges both negligent and wilful misconduct on the part of the defendant. S’ec. 2 of an act entitled “An act to regulate the practice in the Courts of this State in actions
ex delicto
for damages” (acts of 1898, page 693), is as follows : “That in all cases where two or more acts of negligence or other wrongs are set forth in the complaint, as causing or contributing to the injury for which such suit is brought, the party plaintiff in such suit shall not be required to- state such several acts separately, nor shall such party be required to elect upon which he will go to trial, but shall be entitled to submit his whole case to the jury under the instruction of the 'Court, and to recover such damages as he has sustained, whether such damages arose from one or another or all of such acts or wrongs, alleged in the complaint.” Under this act the plaintiff was entitled to recover damages both for negligence and wilful misconduct.
3
The third and fourth exceptions are as follows : “III. The accident is alleged to have happened as the plaintiff was walking down the track, -at a point between two- public street crossings in the city of Greenwood. It was error tO' have admitted evidence of a failure on defendant’s part to give the statutory signals upon approaching these crossings. IV. The accident was alleged to have happened as the plaintiff was walking down the track, at a point between two public street crossings in the city of Greenwood. It was error to charge the jury that the defendant’s failure to give the statutory signals upon approaching these crossings could be considered by the jury in determining whether the railway company exercised due care in giving signals or warnings of its approach to the plaintiff.” The cases of
Mack
v.
R. R. Co.,
52 S. C., 323, and
Mason
v.
R. R. Co.,
58 S.
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The opinion of the Court was delivered by
Mr. Justice Gary.
This is an action for damages alleged to have been sustained by the plaintiff through the negligence of the defendant in cutting off both his legs with its train of cars at Greenwood, S. C., on the 13th of April, 1900. In order to- understand clearly the facts o'ut of which the controversy arose and the issues involved under the pleadings, it will be necessary to refer to- the complaint and answer, which will be incorporated in the report of the case. The jury rendered a verdict in favor of the plaintiff for $1,200.
1
The defendant appealed upon exceptions, the first of which is as follows : “I. The presiding Judge erred in charging the jury as follows: ‘Now, persons may acquire the right to- go upon the property of others by the public continually using or going upon such property, or openly and adversely,
i. e.,
in- open opposition to any will or permission or license of the owner o-f the property, such going if -continuous for a sufficient or long period to raise the presumption of law-that such right does exist. A man may
acquire the right to pass across the lands of another where he, -in open violation, knowing that he is acting in open, violation of the rights of the owner of the property, and where he does so with the knowledge, with notice to. the owner that he is acting in open violation of the rights of the owner, or where he does so in such a notorious manner that the owner may be presumed to know that he is so violating his rights— if he does that as long as twenty years, the law will raise the presumption that he has the right to go> there, and under those circumstances he would cease to be a trespasser, if he has established a prescriptive right, as it is called, to go upon or pass over the property of another; and that principle applies to the property of a railroad company, to its track, just as much as it does to the private lands of individuals.’ The errors assigned being as follows: (i) The plaintiff made no claim in his complaint to a right by prescription to. walk upon the track; the law declared by the Court was, therefore, inapplicable. (2) The complaint alleges permission by the defendant to the public to use it's track. This is inconsistent with the idea of right by prescription, and for this reason, also, the law was inapplicable. (3) To constitute a prescriptive right to a way, the use must have been open, adverse, exclusive and accompanied by some act of the owner which shows a recognition on his part of the right of the claimant to use the way without his permission. The charge is not consistent with this proposition. (4) The use must have been adverse, and knowledge on the part of the owner that the use is adverse cannot be presumed from the notorious character of the use. The Circuit Judge, therefore, erred in charging the jury that a man may acquire the right to pass over the land of another ‘where he does so in such a notorious manner that .the owner may be presumed to- know that he is violating his rights.’ (5) There is no evidence showing that the use of the track as alleged in the complaint by the public was adverse to the right of the railway company, or that it was accompanied by such facts and circumstances as show that it was claimed as a right exercised
without the consent and in opposition to the rights of the railway company. The charge was, therefore, inapplicable and misleading. (6) A right to use the track of a railway company as a footpath cannot be acquired by prescription. (7) The right claimed by the plaintiff was to- get upon the railway track, cross a trestle spanning a cut and continue down the track a distance of fifty yards to a certain foot bridge. -Such right cannot be acquired by prescription, and there was no pleading or testimony making the charge applicable to the case. (8) Prescription rests upon presumption of a grant. A railroad being a public highway, it would be unlawful to grant the use of its track as a footpath. A presumption of an illegal act cannot be sustained.” When the charge is considered in its entirety, it will be seen that it is very full and clear upon the issues raised by the pleadings. No question of a right by prescription was involved under the pleadings, nor was there any testimony whatever sustaining such right. In the exception it is stated that “there was no pleadings or testimony making the charge applicable to the case.” The right by prescription is entirely separate and distinct from that set out in the complaint — one being founded upon an adverse and the other upon a permissive claim. Under .these circumstances, even if there was error in the charge as to a prescriptive right, we do not feel justified in remanding the case for a new trial on this ground. Realizing that is is almost too much to- expect that during the progress of a long trial, in which many -questions were presented, errors will not be committed, the Court is not inclined to grant a new trial, unless it is satisfied ithat there is a reasonable ground for supposing the error may have effected the verdict, which it- is not satisfied exists in this case.
2
The second exception is as follows: “II. The presiding Judge erred in charging the jury that the plaintiff would be entitled to a verdict if they came to the conclusion that the defendant wilfully inflicted injury upon the plaintiff. It is submitted that the action was based upon ordinary negligence, and that a recovery for a wilful tort
should not have been allowed.” The complaint alleges both negligent and wilful misconduct on the part of the defendant. S’ec. 2 of an act entitled “An act to regulate the practice in the Courts of this State in actions
ex delicto
for damages” (acts of 1898, page 693), is as follows : “That in all cases where two or more acts of negligence or other wrongs are set forth in the complaint, as causing or contributing to the injury for which such suit is brought, the party plaintiff in such suit shall not be required to- state such several acts separately, nor shall such party be required to elect upon which he will go to trial, but shall be entitled to submit his whole case to the jury under the instruction of the 'Court, and to recover such damages as he has sustained, whether such damages arose from one or another or all of such acts or wrongs, alleged in the complaint.” Under this act the plaintiff was entitled to recover damages both for negligence and wilful misconduct.
3
The third and fourth exceptions are as follows : “III. The accident is alleged to have happened as the plaintiff was walking down the track, -at a point between two- public street crossings in the city of Greenwood. It was error tO' have admitted evidence of a failure on defendant’s part to give the statutory signals upon approaching these crossings. IV. The accident was alleged to have happened as the plaintiff was walking down the track, at a point between two public street crossings in the city of Greenwood. It was error to charge the jury that the defendant’s failure to give the statutory signals upon approaching these crossings could be considered by the jury in determining whether the railway company exercised due care in giving signals or warnings of its approach to the plaintiff.” The cases of
Mack
v.
R. R. Co.,
52 S. C., 323, and
Mason
v.
R. R. Co.,
58 S. C., 70, show that these exceptions cannot be sustained.
4
The fifth exception is as follows: “V. The presiding Judge erred in charging as follows: ‘Now, therefore, if a railroad company of ordinary prudence and care would give
warning of its approach, at any point on its line, then this railroad company is required to give warning of its approach. The error consisting in this: (i) It eliminates the question of the plaintiff being a trespasser. (2) It makes the duty of the defendant in this particular case depend upon what a railroad of ordinary prudence and care should have done
at any point on its line,
a highway crossing, a crowded street, a crowded yard or elsewhere.” 1. When this portion of the charge is considered in connection with the entire charge, it will be seen that it was full upon the question of the plaintiff being a trespasser. 2. His Honor simply intended to' instruct the jury that the defendant was required
to
give warning' of its approach, if such was demanded in the exercise of ordinary prudence.
The sixth exception is as follows: “VI. The presiding Judge erred in charging the jury as follows : Tf it failed to give warning of its approach, such warning as a railroad of average prudence and care would give, then it failed in its duty in this respect.’ The error consisting in thus eliminating the question of the plaintiff being a trespasser on the track, and also' the explanation of the defendant that the plaintiff was walking upon the side track and being misled by the headlight, stqiped over on the main line immediately in front of the engine.” The language set forth in the exception as the basis of the assignment of error must be considered with reference to the whole charge, by reference to which it will be seen, it is not amenable to the objection imputed to it. >
5
The seventh exception is as follows: “VII. The presiding Judge erred in admitting in evidence the ordinance of the city of Greenwood limiting the speed of trains within a certain area, upon the ground that such ordinance is beyond the power of said municipality, the matter being exclusively within the jurisdiction of the board of railroad commissioners.” The appellant relies upon sections 1630 and 1633 of the Revised Statutes, which are as fol
lows: “Sec. 1630. The commissioners shall have the general supervision of all railroads and railways in this State operated by steam, and shall examine the same and keep themselves informed as to their condition and the manner in which they are operated, with reference to the security and accommodations of the public 'and the compliance of the several corporations with the provisions of their charters and the laws of the State; and the provisions of this charter shall apply to ail railroads and railways, 'and to the corporations, trustees, receivers or others owning or operating the same.” “Sec. 1633. Upon the complaint and application of the mayor and aldermen or council of any city or town, or board of county commissioners of 'any county within which any part of any such railroad is located, it shall be the duty of the commisisoners to make an examination of the condition and operation thereof. Before proceeding to make the examination in accordance with such application, they shall give to the applicants and the railroad corporation reasonable notice in writing of the time and place of entering upon the same. If upon such examination it shall appear to them that the complaint alleged by the applicant is well founded, they shall so adjudge, and shall inform the corporation operating such railroad of their adjudication in the same manner as is provided in sec. 1631 of this chapter; and the company failing for sixty days after such notice to remove the cause of such complaint, they shall make report thereof to the General Assembly for such action as it may deem expedient; or if there be necessity for prompt action, they may take such legal proceedings as may be proper and the attorney general shall institute and conduct such proceedings.” The general principle is settled beyond controversy that a municipality has the power to pass an ordinance regulating the rate of speed of trains passing through its limits. These sections of the Revised Statutes do not confer upon the railroad commissioners power to nullify any law of the State, whether municipal or otherwise.
The eighth exception is as follows:
“VIII. The presiding Judge erred in charging the jury as follows: ‘If you should conclude from the testimony that the city authorities of the city of Greenwood have prescribed a rate of speed beyond which the railroad company is-forbidden to go in operating its trains in the city limits or in a particular part of the city, if you conclude that there is a city law to that effect, then if the testimony establishes that the railroad company did exceed the rate of speed prescribed by law, the railroad company violated its duty to obey that law. It is competent, as the Court has already held in your hearing, for the city authorities to establish such a law as that. We call these local laws of the municipal government, ordinances, but they have the force of law within the incorporate limits just the same as all other statutory enactments have, provided they are valid, not in violation of the law of the land, the law that is higher and that governs the city authorities as well as every other part of the land; and if the city prescribes a rate of speed which it has the power to- do, and the railroad company exceeds that rate of speed, then it violates that law and violates its duty to obey that law.’ The error consisting in this: By sec. 1630, Revised Statutes 1893, the supervision of all railroads in the State is committed to the railroad commissioners, especially as to the manner in which they are operated in reference to- the security of the public. The regulation as to the speed of trains falls within the exclusive jurisdiction of said railroad commissioners, and not within the jurisdiction of the several municipalities of the State. By sec. 1633, by complaint and application by the mayor and council of 'any city touching the operation of any railroad within the incorporate limits, the railroad commissioners are directed to examine into- the operation of said railroad, decide the matter and take such legal steps to enforce the determination as may be proper. For the same reasons, the presiding Judge erred in charging the plaintiff’s eighth request. The ordinance is void, as an attempt to regulate the speed of trains at points where the pub-
lie have no right to be.” This exception is disposed of by what was said in considering the seventh exception.
6
The ninth exception is as follows: “IX. The presiding Judge erred in charging the jury that every person in the city of Greenwood had the right to assume in his conduct and actions that every other person will obey the law and is acting in obediente to the law, and, therefore, if a person acting in violation of the law and some other person is injured because of that violation of the law, it becomes an act of negligence on the part of the violator of the law, and he is liable for whatever injury he may by that breach of duty occasion the other party. The error consisting in this : (I) The charge eliminates the question of contributory negligence. (2) It imposes an absolute liability upon the defendant in case the jury found that the defendant was violating the ordinance as to speed. (3) If plaintiff were a trespasser, he could not claim the benefit of the ordinance fixing the speed.” When this portion of the charge is considered in connection with the entire charge, it will be found free from the errors assigned.
The tenth exception is as follows: “X. The presiding Judge erred in charging the jury that the burden was upon the defendant to establish by the preponderance of the evidence the allegation of the answer that the plaintiff ‘was walking upon one railroad track, and hearing the train approaching behind him, by some mistake supposed that he was upon the track in the way of the train, crossed over tO' another track,' and that that crossing over was what brought him into the position of danger, and what brought on the injury by his getting in front of the engine, immediately in front of it, and so near that the persons in charge of the engine and train did not have time to' stop the train before it caused the injury.’ The error consisting in this: The allegation in the answer was explanatory of how the accident occurred. It was -not an affirmative defense. The burden of proving negligence throughout was upon the plaintiff, and the burden is not shifted when the defendant undertakes to
explain the circumstances of the accident.” That portion of the charge relative to this question was as follows : “The railroad company answers the complaint, and denies that he is entitled to any recovery against the railroad, and further alleges affirmatively that the plaintiff had no legal right to walk upon the track of the defendant, and that the defendant owed him no duty except to refrain from wilful conduct; and further alleges that the plaintiff just before the injury o» accident, was walking upon another track; that he heard the defendant’s train approaching, and mistaking it for a train upon the track on which he was walking, left that track without looking around, 'and stepped upon defendant’s track immediately in front of the engine, before the agents of the defendant in charge of the train could prevent the disaster ; and alleges further that the injury to the plaintiff was brought about by his own negligence and by his contributory negligence. Now, the denial by the defendant of any right in plaintiff to recover, first of all, puts the burden upon the plaintiff of proving the facts that he alleges here as entitling him to recover. He must prove that he was on the track with the permission, as he alleges, of the railroad company, and he must prove that the railroad company was negligent in the particular in which he alleges that it was negligent, and he must prove that that negligence in those particulars, one or more of those particulars, was the cause of his injury. He must prove those facts by the preponderance or greater weight of the testimony; and if he proves those facts by that degree of proof and further establishes the fact that he was injured, he is entitled to a verdict at the hands of this jury, unless the defendant establishes by proof something by way of affirmative allegation or defense which would defeat his right to recover.” It will thus be seen that the exception is founded upon a misapprehension of the charge.
7
The eleventh exception is as follows : “XI. The presiding Judge erred in charging the plaintiff’s third request to charge as follows:
‘A
person on the railroad track with the consent or permission of the railroad company is not,a trespasser,
and is entitled to reasonable care on the part of persons running the trains of such railroad.’ For the reason: Under such circumstances the plaintiff would be a licensee, and the rule of law is that the licensee takes his license subject to the concomitant perils, and the licensor owes him no duty except to refrain from wilfully or wantonly injuring him.” A railroad company owes even to a trespasser the duty to refrain from wilfully or wantonly injuring him; it owes a greater duty to one on the railroad track with the consent or permission of the railroad company.
6
The twelfth exception is as follows: “XII. The presiding Judge erred in charging the plaintiff’s eighth request to charge as follows: ‘An ordinance of a town forbidding railroad trains to run beyond a rate of speed fixed by the ordinance makes it the legal duty of a railroad company to regulate the speed of trains within the limits of such town accordingly. A -railroad company violating such an ordinance is guilty of negligence; and a traveler going upon the track within the area for which such limit of speed is prescribed is not necessarily negligent, if not otherwise at fault, if he relies upon the prescribed rate of speed being used by the railroad trains, though going upon the track at another place than- a street or highway crossing.’ For the following reasons: (i) For the reasons stated in exception VIII. (2) The city council of Greenwood has no control of defendant’s trains except at street crossings. (3) The plaintiff had no right to rely upon the prescribed rule of speed being used, but was obliged to use his senses to avoid a possible infraction of the rule. (4) If plaintiff were a trespasser, he could not claim the benefit of the ordinance.” This exception is disposed of by what was said in considering the other exceptions.
Judgment affirmed.
Mr. .Chief Justice McIver
dissents.