The opinion of the court was delivered by
Mr. Justice MoIver.
This was an action brought by the plaintiff as administrator of Berthold Wehrle, deceased, against the defendant company to recover damages, for the benefit of the wife of the deceased, for the killing of the deceased by the alleged negligence of the defendant company in moving its train.
The plaintiff offered testimony tending to show that the deceased was a watch repairer, living in the city of Greenville, and was accustomed to go to the telegraph office of the defendant company, which was located near the railroad track, on the side next the city, for the purpose of obtaining the correct time as transmitted daily from Washington, so that it was not necessary for the deceased to cross the track or go on it for the purpose of reaching the telegraph office; that on the occasion when the unfortunate disaster occurred, the curiosity of deceased to see certain work which was being done on a freight engine standing on the side track, induced him to cross the side track, and while standing between the side track and the main line, separated by a distance of some ten or fifteen feet, he was struck by the steps of a passenger car, which “jutted out about six inches from the body of the coach,” whereby he was thrown under the wheels of the coach, and the whole train ran over his leg, crushing it to such an extent as to cause his death within the ensuing twenty-four hours; that this passenger car was being pushed back by a shifting engine used for the purpose, which was moving at a speed of about ten miles an hour; that the accident occurred in the railroad yard, through and along which persons were accustomed to pass for their own convenience, though the whole yard ■was surrounded by public streets, and that those in charge of the shifting engine gave no signal of their approach, either by ringing the bell or blowing the whistle, or otherwise, and that no person was at the rear of the backing train as a lookout; that when the deceased was struck, the engineer of the freight engine shouted to the engineer of the shifting engine, and the deceased cried out in distress three times, but the moving train was not stopped until after it had passed over the leg of deceased.
At the close of the testimony adduced by the plaintiff, the defendant made a motion for a non suit, which was granted upon the ground that the plaintiff had failed to offer any evidence [298]*298tending to show negligence upon the part of the defendant company or of its agents or servants; and judgment having been entered accordingly, the plaintiff appeals upon the several grounds set out in the record.
1 Without considering these grounds in detail, we propose to consider and determine the fundamental question whether his honor, Judge Aldrich, erred in holding that there was no evidence tending' to show negligence. It seems that while the judge granted the motion in a short order without assigning any reasons, yet he did so verbally before signing the order, and his remarks seem to have been taken down by the stenographer and are incorporated in the ‘’Case.” An examination of those remarks will show that there is not the slightest foundation for such of the grounds of appeal as impute error in granting the motion upon the ground of contributory negligence on the part of the deceased. On the contrary, the Circuit Judge in express terms declared that he could not consider the question of contributory negligence on a motion for a non-suit, and expressly recognized the rule, laid down in several cases recently decided, that the only question for him to determine tvas, whether there was an entire absence of testimony to support all or any of the necessary and material allegations in the complaint, and reached the conclusion that there was no evidence to support the averment that the death of the deceased was caused by any negligence on the part of the defendant company, its servants or agents. So that the only practical question in this case is whether there was any"' error on the part of the Circuit Judge in reaching this conclusion; for there can be no doubt that the allegation of negligence was a necessary and material allegation, and unless some evidence was offered to sustain it, the non-suit was properly granted.
2 It is true that the Circuit Judge also held that the place where the injury complained of was received was not a “travelled place,” and hence the provisions of General Statutes, 1483 and 1529, did not apply, and that this also is made the basis of one of the other grounds of appeal; but the correctness of the judge’s ruling is so completely vindicated by the recent decision of this court in the case of Neely v. Railroad Com[299]*299pany (33 S. C., 136), that it cannot be necessary to say more upon the subject. In the first place, we agree with the Circuit Judge, that the point where the disaster occurred was not a “travelled place,” in the sense of these words as used in the statute, which manifestly contemplates a way along which persons are not only accustomed, but have a right, to travel, and certainly does not include a railroad yard. And, in the second place, the deceased was not injured while crossing or attempting or intending to cross the railroad track, and therefore the provisions of the statute do not apply; for, as is said by the late Chief Justice in the case just cited, “There can be no doubt but that the object of these sections (1483 and 1529) was to prevent collisions which might occur between persons attempting to cross the track of the railroad and the locomotive and cars approaching the crossing at the same moment, and the provisions of the act did not include, nor was the act intended to include, injuries inflicted upon by-standers not intending to cross.”
3 The only remaining question, therefore, is whether there was error in holding that there was an absence of any testimony tending to show negligence on the part of defendant. After a careful examination of the testimony, as set out in the “Case,” we must say that we have failed to discover any evidence tending to show negligence. We do not see that the defendant either did anything which, under the circumstances, it ought not to have done, or that it omitted to do anything which it ought to have done. It appears that the defendant was shifting its train, in its own yard in the usual way, and that the deceased was where he had no legal right to be, and where the servants of the company had no reason to suppose he would be, a.nd hence there was no occasion for them to keep a lookout, or give signals that a train was approaching. We suppose they were doing what was probably done every day in the same way, and doubtless many times a day.
But even if those in.charge of the shifting engine saw, or ought to have seen, the deceased standing between the main line and the side track where the freight engine which he was watching stood, they would have had no reason to apprehend that he was within reach of the shifting train, as there was ample room for [300]*300him to stand there in safety, as the evidence was that the two tracks were some ten or fifteen feet apart. Even if he had been standing on the track, where he liad no right to be, and where defendant did have a right to move its train, accustomed as he was to visit the depot and telegraph office, he must have known that the tracks were used for shifting trains daily, and the engineer in charge of the shifting engine would naturally assume that he would get out of the way.
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The opinion of the court was delivered by
Mr. Justice MoIver.
This was an action brought by the plaintiff as administrator of Berthold Wehrle, deceased, against the defendant company to recover damages, for the benefit of the wife of the deceased, for the killing of the deceased by the alleged negligence of the defendant company in moving its train.
The plaintiff offered testimony tending to show that the deceased was a watch repairer, living in the city of Greenville, and was accustomed to go to the telegraph office of the defendant company, which was located near the railroad track, on the side next the city, for the purpose of obtaining the correct time as transmitted daily from Washington, so that it was not necessary for the deceased to cross the track or go on it for the purpose of reaching the telegraph office; that on the occasion when the unfortunate disaster occurred, the curiosity of deceased to see certain work which was being done on a freight engine standing on the side track, induced him to cross the side track, and while standing between the side track and the main line, separated by a distance of some ten or fifteen feet, he was struck by the steps of a passenger car, which “jutted out about six inches from the body of the coach,” whereby he was thrown under the wheels of the coach, and the whole train ran over his leg, crushing it to such an extent as to cause his death within the ensuing twenty-four hours; that this passenger car was being pushed back by a shifting engine used for the purpose, which was moving at a speed of about ten miles an hour; that the accident occurred in the railroad yard, through and along which persons were accustomed to pass for their own convenience, though the whole yard ■was surrounded by public streets, and that those in charge of the shifting engine gave no signal of their approach, either by ringing the bell or blowing the whistle, or otherwise, and that no person was at the rear of the backing train as a lookout; that when the deceased was struck, the engineer of the freight engine shouted to the engineer of the shifting engine, and the deceased cried out in distress three times, but the moving train was not stopped until after it had passed over the leg of deceased.
At the close of the testimony adduced by the plaintiff, the defendant made a motion for a non suit, which was granted upon the ground that the plaintiff had failed to offer any evidence [298]*298tending to show negligence upon the part of the defendant company or of its agents or servants; and judgment having been entered accordingly, the plaintiff appeals upon the several grounds set out in the record.
1 Without considering these grounds in detail, we propose to consider and determine the fundamental question whether his honor, Judge Aldrich, erred in holding that there was no evidence tending' to show negligence. It seems that while the judge granted the motion in a short order without assigning any reasons, yet he did so verbally before signing the order, and his remarks seem to have been taken down by the stenographer and are incorporated in the ‘’Case.” An examination of those remarks will show that there is not the slightest foundation for such of the grounds of appeal as impute error in granting the motion upon the ground of contributory negligence on the part of the deceased. On the contrary, the Circuit Judge in express terms declared that he could not consider the question of contributory negligence on a motion for a non-suit, and expressly recognized the rule, laid down in several cases recently decided, that the only question for him to determine tvas, whether there was an entire absence of testimony to support all or any of the necessary and material allegations in the complaint, and reached the conclusion that there was no evidence to support the averment that the death of the deceased was caused by any negligence on the part of the defendant company, its servants or agents. So that the only practical question in this case is whether there was any"' error on the part of the Circuit Judge in reaching this conclusion; for there can be no doubt that the allegation of negligence was a necessary and material allegation, and unless some evidence was offered to sustain it, the non-suit was properly granted.
2 It is true that the Circuit Judge also held that the place where the injury complained of was received was not a “travelled place,” and hence the provisions of General Statutes, 1483 and 1529, did not apply, and that this also is made the basis of one of the other grounds of appeal; but the correctness of the judge’s ruling is so completely vindicated by the recent decision of this court in the case of Neely v. Railroad Com[299]*299pany (33 S. C., 136), that it cannot be necessary to say more upon the subject. In the first place, we agree with the Circuit Judge, that the point where the disaster occurred was not a “travelled place,” in the sense of these words as used in the statute, which manifestly contemplates a way along which persons are not only accustomed, but have a right, to travel, and certainly does not include a railroad yard. And, in the second place, the deceased was not injured while crossing or attempting or intending to cross the railroad track, and therefore the provisions of the statute do not apply; for, as is said by the late Chief Justice in the case just cited, “There can be no doubt but that the object of these sections (1483 and 1529) was to prevent collisions which might occur between persons attempting to cross the track of the railroad and the locomotive and cars approaching the crossing at the same moment, and the provisions of the act did not include, nor was the act intended to include, injuries inflicted upon by-standers not intending to cross.”
3 The only remaining question, therefore, is whether there was error in holding that there was an absence of any testimony tending to show negligence on the part of defendant. After a careful examination of the testimony, as set out in the “Case,” we must say that we have failed to discover any evidence tending to show negligence. We do not see that the defendant either did anything which, under the circumstances, it ought not to have done, or that it omitted to do anything which it ought to have done. It appears that the defendant was shifting its train, in its own yard in the usual way, and that the deceased was where he had no legal right to be, and where the servants of the company had no reason to suppose he would be, a.nd hence there was no occasion for them to keep a lookout, or give signals that a train was approaching. We suppose they were doing what was probably done every day in the same way, and doubtless many times a day.
But even if those in.charge of the shifting engine saw, or ought to have seen, the deceased standing between the main line and the side track where the freight engine which he was watching stood, they would have had no reason to apprehend that he was within reach of the shifting train, as there was ample room for [300]*300him to stand there in safety, as the evidence was that the two tracks were some ten or fifteen feet apart. Even if he had been standing on the track, where he liad no right to be, and where defendant did have a right to move its train, accustomed as he was to visit the depot and telegraph office, he must have known that the tracks were used for shifting trains daily, and the engineer in charge of the shifting engine would naturally assume that he would get out of the way. But more than this, one of the plaintiff’s witnesses who was in twenty feet of deceased when he was struck, though he saw the shifting train approaching, gave no warning to the deceased, for the reason that he did not see that he was in any danger, and yet the plaintiff asks that the court shall assume that those in charge of the shifting train saw or ought to have seen that deceased was in a position of danger.
The eighth ground of appeal is based upon a misrepresentation of the testimony, in that it exaggerates the distance which the steps of the passenger car extended beyond the body of the coach, and assumes that this projection vas unusual and was the cause of the injury. There was absolutely no testimony that this projection was the cause of the injury, as it was possible, from the evidence, that the car might have struck the deceased, standing within two feet of the main line, even if there had been no steps to the car ; and we think there was no evidence that the steps were of an unusual kind; for the only witness who speaks upon this subject is Garrett, who does not even claim to have been an expert, and all that even he says is in answer to the question, “Have you ever seen any other coach that way?” “I have never noticed one if they did.” This it seems to us is very far from affording any evidence that there was anything peculiar or unusual in the steps of that particular car.
It is, however, contended that the failure to stop the shifting train after the hind wheels of the passenger coach had passed over the leg of the deceased, before the other wheels of the coach and those of the tender and engine could reach the unfortunate man, affords evidence of negligence on the part of those in clnu’ge of the shifting engine. But there is not the slightest evidence that the train could have been stopped in so short a distance even by the exercise of the utmost effort and skill; and surely it is [301]*301not to be inferred without evidence, that those in charge of the shifting train would be guilty of so barbarous and cruel an act as to wantonly run over a human being incapable of moving out of the way.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.