The opinion of the Court was delivered by
Mr. Associate Justice Stukes.
This action was brought, under Lord Campbell’s Act, Code 1932 §§ 411, 412, for damages, actual and punitive, accruing to the plaintiff, the father and sole beneficiary, on account of the death of his intestate son whose mangled body was found upon and along the track of the defendant railroad company near and northeast of its Marlboro station in this State.
It was alleged in the complaint that on the Sunday afternoon of May 15, 1938, the deceased, who was twenty-two years old and lived and worked with his father on the latter’s farm in the neighborhood, left the station at Marlboro walking along a beaten pathway adjacent to the railway track, which path the public had for many years traveled on foot, and for some reason unknown to the plaintiff, lay down upon the track, partly on the rail, and when so lying-in an apparently helpless condition about a quarter mile from the station, without view impairment or obstruction to the engineer of the approaching train, was run over by the latter without warning by whistle or bell, whereby the deceased met his death from the reckless, gross and wanton
negligence of the defendants in the following particulars, to wit: (1) Failure to give the signals at an intervening-road crossing and particularly for the deceased after seeing him in an apparently helpless condition on the track; (2) failing- to stop the train as quickly as possible after observing the latter in the said condition, and (3) failure to keep a proper lookout by which the accident would have been prevented.
The answer of the railroad company denied that the death of the-decedent was caused by any negligence or willful negligence of it or its engineer, who was also a defendant in the action, but that such resulted from the decedent’s own negligence, recklessness, willfulness and wantonness or in manner and by means unknown; that the deceased while grossly intoxicated and at about the scheduled time of the regular train lay down upon the track a short distance beyond the curve where he could not be seen by the engineer in. time to stop the train before striking him, and went to sleep or was unconscious from drink, and as soon as he was visible to the engineer all reasonably available means were adopted to stop the train, but such could not be done in time to avoid running over the deceased while he was thus lying on the track. The answer further contains the plea of contributory negligence, recklessness, willfulness and wantonness on the part of the deceased. The answer of the personal defendant, Powers, the locomotive engineer, was of like content.
In the course of the trial, the Court refused defendant’s motions for nonsuit and directed verdict and in the ruling upon the latter it was said that the case would be submitted to the jury on actual and punitive damages on two of the-specifications of alleged negligence only: The failure to stop the train as soon as possible after the engineer saw the decedent on the trade and in not keeping a proper lookout; and such submission would be upon the theory that the decedent was a trespasser. The jury were so instructed, and they returned a general verdict for the defendants.
Thereupon, the plaintiff moved for a new trial upon several grounds, but under the order thereupon we are here concerned only with the ground therein mentioned and upon which a new trial was granted. It can best be set forth by the following quotation of the pertinent part of the order: “After full argument by attorneys for plaintiff and the defendant, I am convinced that I committed error in not submitting to the jury the question as to whether or not the decedent was a licensee, and in submitting the case to the jury on the sole proposition that he was a trespasser. I find that there was evidence upon which the jury under proper instructions could have reached the conclusion that the decedent was a licensee.”
The defendants have appealed upon numerous exceptions which they state in their brief raise four questions. Numbers I and II of these questions charge error on the part of the trial Judge in the refusal of their motion for nonsuit and direction of the verdict. However, under the decisions of this Court an appeal from the refusal of such motions cannot be had until after final judgment, so the exceptions raising these questions are overruled.
Agnew v. Adams,
24 S. C., 86;
Bryson v. Railway Co.,
35 S. C., 608, 14 S. E., 630;
Barker v. Thomas,
85 S. C., 82,
67
S. E., 1;
Floyd v. Page,
124 S. C., 400,
117
S. E., 409;
Parham-Thomas-McSwain v. Atlantic Life Ins. Co.,
106 S. C., 211, 90 S. E., 1022;
Woods v. Rock Hill Fertilizer Co.,
102 S. C., 442, 86 S. E., 817, Ann Cas., 1917-D, 1140.
Appellants’ Questions III and IV impute error to the Court in setting aside the verdict in favor of them and granting respondent’s motion for a new trial because of the instruction of the jury that the decedent was a trespasser, and contend that if such instruction was error it was not prejudicial to respondent. The latter contention is patently untenable; if error, it must be held to have been prejudicial in view of the difference in the law applicable to a licensee and a trespasser, as the jury were instructed in this case.
We have carefully considered the evidence, which is set out in full in the record, and find ourselves in agreement with the conclusion of the trial Court that there was evidence from which the jury may have reasonably concluded that the deceased was a licensee and not a trespasser.
The rule in this State, as we understand it, gathered from an examination of many cases, is that even though the use of a pathway running alongside the railroad track was not for such length of time nor of such character as to give a legal right to so use it, and even though the evidence fell short of showing any positive consent by the company to such use, yet if there was evidence tending to show knowledge of and acquiescence in such use without protest, such evidence would tend to show that the railroad company had reason to expect the presence of persons along or on the track who were not there as bald trespassers, but whose presence at the particular place might reasonably be anticipated.
Sentell v. Southern Ry.,
70 S. C., 183, 49 S. E., 215;
Sanders v. Southern Ry., Carolina Division,
90 S. C., 331, 73 S. E., 356;
Carter v. Seaboard, Air Line R. Co.,
114 S. C., 517, 104 S. E., 186. See, also,
Pryor v. Atlantic-Charlotte Airline R. Co.,
179 S. C., 423, 184 S. E., 137;
Key v. Charleston & W. C. R. Co.,
144 S. C., 164, 142 S. E., 336;
Sharpe v. Southern R. Co.,
125 S. C., 478, 119 S. E., 245, and Annotation, 120 A. L. R., 1076.
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The opinion of the Court was delivered by
Mr. Associate Justice Stukes.
This action was brought, under Lord Campbell’s Act, Code 1932 §§ 411, 412, for damages, actual and punitive, accruing to the plaintiff, the father and sole beneficiary, on account of the death of his intestate son whose mangled body was found upon and along the track of the defendant railroad company near and northeast of its Marlboro station in this State.
It was alleged in the complaint that on the Sunday afternoon of May 15, 1938, the deceased, who was twenty-two years old and lived and worked with his father on the latter’s farm in the neighborhood, left the station at Marlboro walking along a beaten pathway adjacent to the railway track, which path the public had for many years traveled on foot, and for some reason unknown to the plaintiff, lay down upon the track, partly on the rail, and when so lying-in an apparently helpless condition about a quarter mile from the station, without view impairment or obstruction to the engineer of the approaching train, was run over by the latter without warning by whistle or bell, whereby the deceased met his death from the reckless, gross and wanton
negligence of the defendants in the following particulars, to wit: (1) Failure to give the signals at an intervening-road crossing and particularly for the deceased after seeing him in an apparently helpless condition on the track; (2) failing- to stop the train as quickly as possible after observing the latter in the said condition, and (3) failure to keep a proper lookout by which the accident would have been prevented.
The answer of the railroad company denied that the death of the-decedent was caused by any negligence or willful negligence of it or its engineer, who was also a defendant in the action, but that such resulted from the decedent’s own negligence, recklessness, willfulness and wantonness or in manner and by means unknown; that the deceased while grossly intoxicated and at about the scheduled time of the regular train lay down upon the track a short distance beyond the curve where he could not be seen by the engineer in. time to stop the train before striking him, and went to sleep or was unconscious from drink, and as soon as he was visible to the engineer all reasonably available means were adopted to stop the train, but such could not be done in time to avoid running over the deceased while he was thus lying on the track. The answer further contains the plea of contributory negligence, recklessness, willfulness and wantonness on the part of the deceased. The answer of the personal defendant, Powers, the locomotive engineer, was of like content.
In the course of the trial, the Court refused defendant’s motions for nonsuit and directed verdict and in the ruling upon the latter it was said that the case would be submitted to the jury on actual and punitive damages on two of the-specifications of alleged negligence only: The failure to stop the train as soon as possible after the engineer saw the decedent on the trade and in not keeping a proper lookout; and such submission would be upon the theory that the decedent was a trespasser. The jury were so instructed, and they returned a general verdict for the defendants.
Thereupon, the plaintiff moved for a new trial upon several grounds, but under the order thereupon we are here concerned only with the ground therein mentioned and upon which a new trial was granted. It can best be set forth by the following quotation of the pertinent part of the order: “After full argument by attorneys for plaintiff and the defendant, I am convinced that I committed error in not submitting to the jury the question as to whether or not the decedent was a licensee, and in submitting the case to the jury on the sole proposition that he was a trespasser. I find that there was evidence upon which the jury under proper instructions could have reached the conclusion that the decedent was a licensee.”
The defendants have appealed upon numerous exceptions which they state in their brief raise four questions. Numbers I and II of these questions charge error on the part of the trial Judge in the refusal of their motion for nonsuit and direction of the verdict. However, under the decisions of this Court an appeal from the refusal of such motions cannot be had until after final judgment, so the exceptions raising these questions are overruled.
Agnew v. Adams,
24 S. C., 86;
Bryson v. Railway Co.,
35 S. C., 608, 14 S. E., 630;
Barker v. Thomas,
85 S. C., 82,
67
S. E., 1;
Floyd v. Page,
124 S. C., 400,
117
S. E., 409;
Parham-Thomas-McSwain v. Atlantic Life Ins. Co.,
106 S. C., 211, 90 S. E., 1022;
Woods v. Rock Hill Fertilizer Co.,
102 S. C., 442, 86 S. E., 817, Ann Cas., 1917-D, 1140.
Appellants’ Questions III and IV impute error to the Court in setting aside the verdict in favor of them and granting respondent’s motion for a new trial because of the instruction of the jury that the decedent was a trespasser, and contend that if such instruction was error it was not prejudicial to respondent. The latter contention is patently untenable; if error, it must be held to have been prejudicial in view of the difference in the law applicable to a licensee and a trespasser, as the jury were instructed in this case.
We have carefully considered the evidence, which is set out in full in the record, and find ourselves in agreement with the conclusion of the trial Court that there was evidence from which the jury may have reasonably concluded that the deceased was a licensee and not a trespasser.
The rule in this State, as we understand it, gathered from an examination of many cases, is that even though the use of a pathway running alongside the railroad track was not for such length of time nor of such character as to give a legal right to so use it, and even though the evidence fell short of showing any positive consent by the company to such use, yet if there was evidence tending to show knowledge of and acquiescence in such use without protest, such evidence would tend to show that the railroad company had reason to expect the presence of persons along or on the track who were not there as bald trespassers, but whose presence at the particular place might reasonably be anticipated.
Sentell v. Southern Ry.,
70 S. C., 183, 49 S. E., 215;
Sanders v. Southern Ry., Carolina Division,
90 S. C., 331, 73 S. E., 356;
Carter v. Seaboard, Air Line R. Co.,
114 S. C., 517, 104 S. E., 186. See, also,
Pryor v. Atlantic-Charlotte Airline R. Co.,
179 S. C., 423, 184 S. E., 137;
Key v. Charleston & W. C. R. Co.,
144 S. C., 164, 142 S. E., 336;
Sharpe v. Southern R. Co.,
125 S. C., 478, 119 S. E., 245, and Annotation, 120 A. L. R., 1076.
A review of the foregoing cases, and many others, shows that our Court, along with a majority of the Courts of other jurisdictions, has adopted what might be termed a liberal view, to the effect that a railroad does or may owe a duty to anticipate the presence of persons along or crossing its tracks at a well-defined pathway at a place in which it has acquiesced in a somewhat general use thereof (not amounting to a legally established public use), or where the circumstances have been such that the presence of per
sons on or along the tracks at that particular place may reasonably be expected.
In accordance with this rule, the relation to the railroad company of one injured at such place, is not necessarily that of a naked trespasser, but his status may be that of a licensee, and as such it would'be the duty of the railroad company to exercise ordinary care so as to prevent injury to him.
The testimony in the case at bar permitted the inference that for more than twenty years the railroad company had acquiesced in the use of the footpath in question by pedestrians. There is also testimony tending- to show that this path was near’the Marlboro station, and extended between two railroad crossings. While it is true that it appeared that the deceased was lying outstretched on the track, with his feet toward the crosstie ends and his arms and head actually on the rail, this would not permit the Court under the testimony to declare as a matter of law that the decedent was a trespasser. His prone position indicated a helpless physical condition, near the footpath upon which he had been seen walking within a half hour prior to the time the engine ran over him, and at a place where the public was accustomed to use such path. Whether under these circumstances the defendants were charged with the duty of anticipating the presence of persons on or near this particular stretch of track was a question for the determination of the jury. If such duty was incumbent upon them then they should have exercised ordinary care.
Judgment affirmed.
Mr. Associate Justice Bisi-iburne and Mr. Acting Associate Justice L. D. Lide concur.
Mr. Associate Justice Baker concurs in part and dissents.
Mr. Cliiee Justice Bonham: dissents.