The opinion of the Court was delivered by
Mr. Justice Stabler.
On. or about October 22, 1922, the plaintiff, who was in the Town of Remini, S. C., while attempting to cross the defendant’s track, was hit and severely injured by one of its trains. This action was brought for damages alleged to have been suffered by him, as the result of defendant’s alleged negligence and willfulness.
The complaint sets out that the plaintiff was subject to fits of an epileptic nature, and that he fell with one of these fits while crossing the track of the defendant; that although
he was in plain view of the agents of the defendant, the defendant drove its train upon and over him while he was in this helpless condition; and that where the plaintiff attempted to cross the defendant’s track was a publicly traveled place, known to defendant to be such, and that upon approaching same the defendant negligently and willfully failed to give the required statutory signals.
The defendant denied all the material allegations of the complaint. It also interposed the plea of contributory negligence and willfulness on the part of the plaintiff, in going into a place of danger, with full knowledge of his physical deficiencies, alleging that such acts of the plaintiff were .the proximate cause of the injury complained of.
At the close of all the testimony, the defendant’s motion for a directed verdict was overruled by the Court, and the jury found for the plaintiff in the sum of $1,450.
The defendant appeals to this Court by six exceptions, which will be reported. Error is imputed to the trial Judge in three particulars: (1) Error in refusing to direct a verdict for the defendant upon the grounds stated in the first four exceptions; (2) error in charging the plaintiff’s second and third requests to charge and commenting thereon as complained of by exception 5; and (3) error in charging plaintiff’s fifth request to charge and commenting thereon as complained of by Exception 6.
We shall consider the defendant’s first four exceptions together. These exceptions impute error to the trial Judge in refusing to direct a verdict for the defendant on the grounds: (1) That the plaintiff brought about the injuries complained of by his own acts; (2) that there was a failure of proof of any actionable negligence on the part of the defendant; and (3) that the plaintiff was guilty of such gross contributory negligence and willfulness as to bar recovery.
In considering these exceptions it will' be necessary to briefly review the testimony.
The plaintiff testified that he lived about three miles from Remini, and that on the day mentioned he went to Remini to sell beef; that the colored cook with the trestle force of the defendant called to him to bring some beef to the cook shanty, “which was situated in a box car on a side track across the main line,” opposite the depot; that the public crossing was about 75 yards north of the depot; that he went over to the shanty car by way of a path used by the employees of the defendant or by anybody who- had business at the cook shanty, and that the path led to the shanty car and no further; that he was subject to epileptic fits, and that while returning from the shanty car he was tdken by one of these fits, and while in this condition, not knowing, hearing or seeing anything, he was hit by the defendant’s train upon its track where the path crossed same.
The testimony of the plaintiff and the testimony of the defendant apparently agree that the path which the plaintiff was using at the time of the accident led from the depot to the shanty car on the defendant’s right of way and no further, and that it had been used for a number of years by the members of the public having business at the shanty car, particularly for the sale of provisions, etc.
There was testimony on the part of the defendant that the statutory signals were given; that the train was approaching the depot and could be seen at a great distance from that point; and that the plaintiff went on the track in front of the approaching train without taking any precautions for his own safety and was hit while so walking across the track.
While the testimony in the case was meager, it tended to s,how that the plaintiff approached the track to the left of the approaching train, but was not seen by the operators of the train whose duty it was to keep a lookout, and that the operators thus failed in their duty to exercise the proper care under all the circumstances in keeping a reasonable lookout on the approach to the station.
Even if the place where the accident occurred was not a “traveled place,” within the meaning of the statute requiring signals to be given at such place, the defendant owed a duty to the plaintiff and the public on its approach to the station, where numbers of people were likely to be assembled, to exercise due care under the circumstances. The jury might have inferred from the testimony that if a proper lookout had been maintained by the defendant in its approach to the station the plaintiff would have been seen, and that if, as contended by the defendant, the train was running at a low rate of speed, it might have been stopped in time to avert the accident; and whether a proper lookout was being maintained by the defendant and whether the failure to keep a proper lookout was the proximate cause of the injury were questions for the jury.
The appellant by its sixth exception imputes error to the trial Judge in submitting to the jury the question whether or not the locus of the injury was a “traveled place” within the meaning of the statute, requiring signals to be given at a public crossing or traveled place, stating the error to be that “there was not sufficient evidence that the point at which plaintiff was injured constituted a crossing or a traveled place, within the terms of that statute.” It does not appear that the trial Judge charged the jury as to what constituted a “traveled place” within the meaning of the statute, but no exception was taken to his failure to do so.
In
Sanders v. Southern Railway Co., 97
S. C., 423; 81 S. E., 786, the Court said:
“In several cases this Court has defined1 a traveled place to be one where people are not only accustomed to travel, but also have, in some way, acquired a legal right to travel.
Hale v. Railroad Co.,
34 S. C., 299; 13 S. E., 537.
Barber v. Railroad Co.,
34 S. C., 450; 13 S. E., 630.
Hankinson v. Railroad Co.,
41 S. C., 20; 19 S. E., 206.
Strother v. Railroad Co.,
47 S. C., 375; 25 S. E., 272.
Risinger v.
Railroad Co.,
59 S. C., 429; 38 S. E., 1.
Kirby v. Railroad Co.,
63 S. C., 494; 41 S. E., 765.”
The Court in that case defined a “legal right” as follows:
“When we speak of a legal right, we mean a right of such nature that can be legally enforced, and cannot be lawfully denied or interfered with.”
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The opinion of the Court was delivered by
Mr. Justice Stabler.
On. or about October 22, 1922, the plaintiff, who was in the Town of Remini, S. C., while attempting to cross the defendant’s track, was hit and severely injured by one of its trains. This action was brought for damages alleged to have been suffered by him, as the result of defendant’s alleged negligence and willfulness.
The complaint sets out that the plaintiff was subject to fits of an epileptic nature, and that he fell with one of these fits while crossing the track of the defendant; that although
he was in plain view of the agents of the defendant, the defendant drove its train upon and over him while he was in this helpless condition; and that where the plaintiff attempted to cross the defendant’s track was a publicly traveled place, known to defendant to be such, and that upon approaching same the defendant negligently and willfully failed to give the required statutory signals.
The defendant denied all the material allegations of the complaint. It also interposed the plea of contributory negligence and willfulness on the part of the plaintiff, in going into a place of danger, with full knowledge of his physical deficiencies, alleging that such acts of the plaintiff were .the proximate cause of the injury complained of.
At the close of all the testimony, the defendant’s motion for a directed verdict was overruled by the Court, and the jury found for the plaintiff in the sum of $1,450.
The defendant appeals to this Court by six exceptions, which will be reported. Error is imputed to the trial Judge in three particulars: (1) Error in refusing to direct a verdict for the defendant upon the grounds stated in the first four exceptions; (2) error in charging the plaintiff’s second and third requests to charge and commenting thereon as complained of by exception 5; and (3) error in charging plaintiff’s fifth request to charge and commenting thereon as complained of by Exception 6.
We shall consider the defendant’s first four exceptions together. These exceptions impute error to the trial Judge in refusing to direct a verdict for the defendant on the grounds: (1) That the plaintiff brought about the injuries complained of by his own acts; (2) that there was a failure of proof of any actionable negligence on the part of the defendant; and (3) that the plaintiff was guilty of such gross contributory negligence and willfulness as to bar recovery.
In considering these exceptions it will' be necessary to briefly review the testimony.
The plaintiff testified that he lived about three miles from Remini, and that on the day mentioned he went to Remini to sell beef; that the colored cook with the trestle force of the defendant called to him to bring some beef to the cook shanty, “which was situated in a box car on a side track across the main line,” opposite the depot; that the public crossing was about 75 yards north of the depot; that he went over to the shanty car by way of a path used by the employees of the defendant or by anybody who- had business at the cook shanty, and that the path led to the shanty car and no further; that he was subject to epileptic fits, and that while returning from the shanty car he was tdken by one of these fits, and while in this condition, not knowing, hearing or seeing anything, he was hit by the defendant’s train upon its track where the path crossed same.
The testimony of the plaintiff and the testimony of the defendant apparently agree that the path which the plaintiff was using at the time of the accident led from the depot to the shanty car on the defendant’s right of way and no further, and that it had been used for a number of years by the members of the public having business at the shanty car, particularly for the sale of provisions, etc.
There was testimony on the part of the defendant that the statutory signals were given; that the train was approaching the depot and could be seen at a great distance from that point; and that the plaintiff went on the track in front of the approaching train without taking any precautions for his own safety and was hit while so walking across the track.
While the testimony in the case was meager, it tended to s,how that the plaintiff approached the track to the left of the approaching train, but was not seen by the operators of the train whose duty it was to keep a lookout, and that the operators thus failed in their duty to exercise the proper care under all the circumstances in keeping a reasonable lookout on the approach to the station.
Even if the place where the accident occurred was not a “traveled place,” within the meaning of the statute requiring signals to be given at such place, the defendant owed a duty to the plaintiff and the public on its approach to the station, where numbers of people were likely to be assembled, to exercise due care under the circumstances. The jury might have inferred from the testimony that if a proper lookout had been maintained by the defendant in its approach to the station the plaintiff would have been seen, and that if, as contended by the defendant, the train was running at a low rate of speed, it might have been stopped in time to avert the accident; and whether a proper lookout was being maintained by the defendant and whether the failure to keep a proper lookout was the proximate cause of the injury were questions for the jury.
The appellant by its sixth exception imputes error to the trial Judge in submitting to the jury the question whether or not the locus of the injury was a “traveled place” within the meaning of the statute, requiring signals to be given at a public crossing or traveled place, stating the error to be that “there was not sufficient evidence that the point at which plaintiff was injured constituted a crossing or a traveled place, within the terms of that statute.” It does not appear that the trial Judge charged the jury as to what constituted a “traveled place” within the meaning of the statute, but no exception was taken to his failure to do so.
In
Sanders v. Southern Railway Co., 97
S. C., 423; 81 S. E., 786, the Court said:
“In several cases this Court has defined1 a traveled place to be one where people are not only accustomed to travel, but also have, in some way, acquired a legal right to travel.
Hale v. Railroad Co.,
34 S. C., 299; 13 S. E., 537.
Barber v. Railroad Co.,
34 S. C., 450; 13 S. E., 630.
Hankinson v. Railroad Co.,
41 S. C., 20; 19 S. E., 206.
Strother v. Railroad Co.,
47 S. C., 375; 25 S. E., 272.
Risinger v.
Railroad Co.,
59 S. C., 429; 38 S. E., 1.
Kirby v. Railroad Co.,
63 S. C., 494; 41 S. E., 765.”
The Court in that case defined a “legal right” as follows:
“When we speak of a legal right, we mean a right of such nature that can be legally enforced, and cannot be lawfully denied or interfered with.”
It does not appear from the testimony adduced in the case at bar that the public or the plaintiff had acquired any such legal right to travel where the alleged injury occurred. The path led across defendant’s track to the shanty car on its right of way and no further. Those who desired to go to the shanty car had been, crossing the track at that point for some years. It does not appear that the path was used by the public for any other purpose. It will hardly be denied that the defendant had the right to move the shanty car from its right of way at any time it might desire to do so, and thus discontinue the use of the path leading to it from the station.
The testimony did not warrant the submission to the jury of the question whether the place where the injury occurred was a “traveled place” within the meaning of the statute.
This exception must be sustained.
The fifth exception involves the construction of Section 4925 of Volume 3 of the 1922 Code, which is as follows:
“If a person is injured in his person or property by collision with the engines or any car or cars of a railroad corporation at a crossing, and it appears that the corporation neglected to give the signals required by this Chapter, and that such neglect contributed to the injury, the corporation shall be liable for all damages caused by the collision or to a fine recoverable by indictment, as provided in the preceding section, unless it is shown that in addition to a mere want of ordinary care the person injured, or the person having charge of his person or property, was at the time.of the collision guilty of gross or wilful negligence, or was acting
in violation of the law, and that such gross wilful negligence or unlawful act contributed to the injury.”
As the question involved is one of construction of the statute, it must be decided with reference to the provisions of the statute, and so cases decided on general principles of law but not involving the statute may not control.
Under the statute it must appear: (1) That an injury occurred at a crossing; (2) that there was a failure to give the statutory signals; and (3) that such failure contributed to the injury.
'In construing the statute this Court has held: (1) That, •the word “contributed” in the statute means contributing as a proximate cause of the injury; and (2) that failure to give the statutory signals creates a presumption that such failure caused the injury, unless the testimony shows that the injury was caused in some other manner. It is contended that these two holdings are inconsistent.
A brief review of some of the cases decided under the statute may be enlightening.
In
Wragge v. Railway Co.
(July 14, 1896), 47 S. C., 105; 25 S. E., 76; 33 L. R. A., 191 Am. St. Rep., 870, the Court held that the word “contributed” as used in the statute with reference to the railroad’s negligence, was used in its ordinary and popular signification; that “one thing is understood to contribute to a given result, when such thing has some share or agency in producing such result, and is not understood to convey the idea that such thing was the efficient cause of such result, in the sense that, without it, such result would not have occurred”; that it was sufficient if “such neglect contributed in any way to the disaster, in the sense that it had any share or agency in bringing about the disaster.” This Court held that Circuit Judge was correct in refusing to charge as requested, that the plaintiff must not only prove that defendant failed to give the statutory signals, but must also show “that the failure to give
these signals caused the death of the deceased; that is to say, that if, under the circumstances proved in this case, the statutory signals had been given, the deceased would not "have come to his death.”
In
Strother v. Railway Co.
(July 29, 1896), 47 S. C., 375; 25 S. E., 272, the Court.said:
“The failure on the part of the defendant’s servants to ring the bell or sound the whistle in the manner provided by statute was negligence
per se.
When the defendant violates the requirements of the statute as to ringing the bell or sounding the whistle, and a person is injured by its locomotive, while crossing a highway, street or traveled place, it will be presumed that such negligence caused the injury, unless the testimony shows that the injury was caused in some other manner, which was not done in this case.”
In
Bowen v. Railroad Co.
(July 16, 1900), 58 S. C., 222; 36 S. E., 590, however, the Court sustained the Circuit Judge in refusing to charge the defendant’s request as follows :
“It may have been possible that the disaster would have occurred even if there had been no gross negligence on the part of the plaintiff, and yet if there was such negligence on his part and it contributed to the disaster, the plaintiff cannot recover.”
The defendant contended that this request contained a correct proposition of law, “and was intended to convey the idea that the gross negligence of the plaintiff need not be the proximate cause of the disaster; but that if it contributed in any way to it the plaintiff could not recover.” In overruling the exception based on the trial Judge’s refusal to charges as requested the Court said:
“When the law speaks of an act of negligence as contributory to an injury, it means as a direct and proximate cause thereof. Contributory negligence is thus defined in 7 Am. & Eng. Enc. Law (2d Ed.), p. 371: ‘Contributory neg
ligence is a want of ordinary care upon the part of a person injured by the actionable negligence of another combining and concurring with that negligence, and contributing to the injury, as a proximate cause thereof, without which the injury would not have occurred.’ ”
This holding, in effect, overruled the
Wragge case.
In
Drawdy v. Railway Co,.
(October 12, 1907), 78 S. C., 374; 58 S. E., 980, the Court quoted from the
Strother case
in support of its holding that noncompliance with the statute is presumed to be the negligence which causes personal injury or death of a person injured or killed by the train at a crossing, but held that there was gross negligence on the part of the plaintiff which contributed to his death as a proximate cause, the presumption thus being overcome by the testimony.
In
Burns v. Railway Co.
(February 19, 1903), 65 S. C., 229; 43 S. E., 679, the presiding Judge charged the jury as follows:
JIf you find that the defendant railroad company was negligent, was guilty of negligence, and that the plaintiff was guilty of gross negligence himself, and that such gross negligence was the proximate cause of the injury, then you must find for the defendant.”
The defendant excepted to this charge, citing as authority for its exception the
Wragge case, supra,
in which the Court construed the word “contributed,” in connection with the defendant’s negligence, to mean having any share or agency in bringing about the result, and contending that the same word used in the same section in connection with the plaintiff’s gross negligencej should receive the same construction. The Court overruled the exception, pointing out that, while the request conformed to the principle announced in the
Wragge case,
a different rule is laid down in the
Bowen case,
which is subsequent to the
Wragge case.
It is worthy of note that in the
Burns case
the appellant’s attorney had been granted permission to review the
Bowen
case
in which the Court discussed the meaning of the words “contributed” and “contributory” (see above), and that after quoting from the
Bowen case
the Court said:
“This Court, after mature deliberation, has determined to adhere to the rule stated in
Bowen v. Railway Co.,
for otherwise there would be no legal test for the guidance of the jury in determining whether the act of the party contributed to the injury.”
In
Turbyfill v. Railway Co.
(August 10, 1909), 83 S. C., 325; 65 S. E., 278, the presiding Judge, at the plaintiff’s request, charged as follows, citing the
Wragge case
as authority :
“In an action against a railroad company for damages, for the death of a person under Section 2132, Civ. Code, 1902, it is not necessary to show that a failure to ring the bell or blow the whistle was the proximate cause of the killing. It is sufficient to show that it contributed to the killing.”
The Supreme Court sustained an exception to this charge, stating that the
Wragge case
had been practically overruled.
In the
Turbyfill case
the appellant’s attorney asked that the
Strother case
be reviewed in so far as it decided that if the railroad fails to give the statutory signal and a person is injured at a railroad crossing, there is a presumption thát such negligence caused the injury, but the Court announced that it again adhered to the doctrine announced in the
Strother case.
In
Lee v. Railway Co.
(November 3, 1909), 84 S. C., 125; 65 S. E., 1031, the Court said:
“The first exception cannot be sustained, because when it appears that an injury occurred at a crossing, and that the statutory signals were not given, there arises the presumption that the failure to give the signals, which is negligence
per se,
contributed to the injury.
Strother v. Railway,
47 S. C., 375; 25 S. E., 272. Therefore, if nothing further appeared, the plaintiff would be entitled to a verdict.
And to prevent that result the defendant may show that, notwithstanding the failure to give the signals, the plaintiff knew of the approach of the train in time to avoid the collision, for the object of requiring the signals is to give notice of the approach of the train.
Edwards v. Railway,
63 S. C., 271; 41 S. E., 458.
Bishop v. Railway,
63 S. C., 532; 41 S. E., 808.
Nohrden v. Railway,
59 S. C., 99; 37 S. E., 228; 82 Am. St. Rep., 826.”
In
Cable Piano Co. v. Railway Co.
(March 27, 1913), 94 S. C., 143; 77 S. E., 868, the Court stated that the law as to the construction of the word “contributed” as us„ed in the statute was announced in the
Wragge case,
followed in the
Strother case,
but overruled in the
Bowen case,
saying that the
Bowen case
has been followed ever since, and cited, among others, the
Turbyfill case
in support of that view.
In
Peeples v. Railway Co.
(October 11, 1920), 115 S. C., 115; 104 S. E., 541, the Court quotes from the
Strother case
in support of its holdings :
“The trial Judge was not in error in charging the jury that where the statutory signals are not given, and an injury occurs, there is a presumption that the failure to give the signals is the proximate cause of the injury.”
In
Cirsosky v. Smathers
(April 23, 1924), 128 S. C., 358; 122 S. E., 864, which, however, involves the construction of a city ordinance and not the railroad signal statute, this Court said:
“Although the violation of a statute is held to be negligence
per se,
there must be a causal relation between such, act and the injury to render the defendant liable, and such violation must be the proximate cause of the injury” — citing 29 Cyc., 439.
The above cases have been cited somewhat at length in chronological order in the hope that they may form a suitable background for the consideration of appellant’s contention that the two principles of construction of the signal statute as to (1) the necessity or causal relationship be
tween the failure to give the signals and the injury suffered; and (2) the presumption that the failure to give the signals caused the injury, either the one or other of which was considered in each of the cases cited and both of which were announced in the
Turbyfill case,
are inconsistent with each other. The fact that both of these principles, after being first announced, were reviewed by this Court and affirmed after such review, is significant of the fact that the Court has held to both principles, and the fact that in one instance, the
Turbyfill case,
both principles were affirmed in the same case, is still more significant. Evidently this Court has never considered that these two principles are inconsistent, and we are still of that opinion.
Under the statute it must appear that the failure to give the signals contributed to the injury, and the decision of this Court holds that this means contributing as a proximate cause. It does not necessarily follow, however, that the causal relationship must be shown, in the first instance, by evidence, since, as in other cases, a presumption, if reasonable and well-founded, may arise from the proven facts. The rule as to causal relation between the violation of the statute and the injury is clearly stated in 20 R. C. L. at page 43, as follows:
“The meaning of proximate cause in this connection has been explained as 'follows: If the injury complained of is a natural and probable consequence of a violation of the statute, then that violation is correctly taken as the proximate cause of the injury. If the very injury has happened which was intended to be prevented by the statute law, that injury must be considered as directly caused by the nonobservance of the law. But if the injury is one that happened by causes independent of the violation of the statute, it is not actionable on the basis of that violation.”
° The signal statute, as shown by the title to Article 7 of the Code, is a regulation for the prevention of accidents and concerning the responsibility therefor.. The Legislature
evidently had in mind that injury to person or property was very iikely to occur at a railroad crossing unless proper warning of the approach of trains was given to travelers,' and intended by the statute to prevent such injury by requiring the railroad to give certain definitely described signals.
From our consideration of this question, we are satisfied that the proper construction of the statute leads to the conclusion that when a person is injured by a collision with the engines or any car or cars of a railroad corporation at a crossing, and the railroad failed to give the statutory signals at such time and place, the presumption arises that the failure to give the signals is the proximate cause of the injury, since such injury is the natural and probable consequence of the failure to give the signals and is the very injury intended to be prevented by the statute. It must be borne in mind that this presumption does not mean that the causal relationship between the failure to give the signals and the injury is shown conclusively, The presumption merely establishes a
prima facie
case, which may be overcome by testimony, whether given for the plaintiff or for the defendant. This was made clear in the
Strother case;
and later, in the
Drawdy
case, it was 'held that the presumption in favor of the plaintiff was overcome by the testimony in favor of the defendant. The trial Judge, in the case at bar, clearly conceived the law on that point.
There was no error in the charge of the trial Judge as complained of in the fifth exception, and the exception is overruled.
The judgment of the Circuit Court is reversed and the case remanded for a new trial.
Mr. Chiee Justice Watts and Mr. Justice Beease concur. Mr. Acting Associate Justice Purdy concurs in result. Mr. Justice Coti-iran concurs in part and dissents in part.