Hutchinson v. A.C.L.R. Co.

114 S.E. 323, 121 S.C. 218, 1922 S.C. LEXIS 204

Opinion

The opinion of the Court was delivered by

Mr. Justice Watts.

This was an action for damages for the alleged killing of Evander Hutchinson, and after issue joined was tried before Judge Gary and a jury at Florence, S. C., November, 1921, and resulted in a verdict in favor of plaintiff for the sum of $7,500. At the close of plaintiff’s testimony a motion for a nonsuit was made and refused by the Court. Then appellants were permitted by the Court to file an amended answer. At the close of all the testimony the appellants moved for a directed verdict, which was refused. After verdict a motion for a new trial was made and refused. After entry of judgment appellants appeal.

Exceptions 1 to 5, inclusive, allege error on" the part of his Honor in not granting motions made by appellants for nonsüit and directed verdict. These exceptions contend that there was no evidence to- sustain the allegations oí complaint as to either negligence or willfulness; that no one of the acts of negligence specified was the proximate cause of the injury, but the proximate cause of the injury was the negligence and gross negligence of the plaintiff’s intestate; and that all of the evidence showed that the negligence of the plaintiff’s intestate, if not the sole-cause of the injury, contributed as a proximate cause.

There is no doubt but that there was some testimony to go to the jury under the specifications of negligence as alleged in the complaint and under the issues, as raised by the pleadings, from which more than one inference could have been drawn. It is true that there was a conflict of' evidence, and that was for the jury to decide. His Honor would have been in error to have granted either of these motions. Wideman v. Hines, 109 S. E., 123; Wheelis v. Southern Railway Company, 110 S. E., 154; also section 3222, Code of Taws, 1912, which provides, that bell shall be rung or whistle sounded continuously from a distance of at least 500 yards until the engine has crossed the. highway.

Erom the evidence more than one inference could have been drawn. There was evidence for the jury to pass on whether or not the signals required by statute were given. The Court was right in leaving to the jury for their deter- , mination whether or not the statutory signals were given. He read the statute, and fully and clearly charged the law applicable in such cases. We see no error as complained of in the exceptions. All exceptions are overruled, and judgment affirmed.