Pearson v. Piedmont & N. Ry. Co.

99 S.E. 811, 112 S.C. 220, 1919 S.C. LEXIS 121

• Court: Supreme Court of South Carolina
• Decided: July 14, 1919
• Docket: 10235
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Fraser.

This is an action for death by the wrongful act. The appellant owns and operates an electric railway, between Camp Wadsworth and Spartanburg. On account of the great number of workmen who labor at Camp Wadsworth in the day, and sleep in Spartanburg at night, the railway company was unable to meet the great demand upon its transportation department. The company put on a special train for workmen, which was moved, by a steam locomotive. On the 17th October, 1917, the electric train left the station at the camp only a few minutes (some say five min • utes) ahead of the steam train. Both used the same track. Both trains were loaded beyond their capacity. There is evidence that the workmen’s train was not only crowded, but that men were standing in the aisles, on the platform between the cars, on the steps, on the tender, in the cab, on the sideboards around the engine, and on the pilot (or rather where the pilot usually is), in front of the engine. On the line of road there is a place where the railway runs through a cut and then out on a fill. The road curves in the cut. When the work train came out of the cut, it found the electric train standing or moving slowly on the fill and not over 300 yards distant. A rear end collision occurred, in which the deceased was so badly mangled that he lingered only few hours and died. As might be expected, when people are killed and wounded, the testimony is conflicting. This death gave rise to two actions, one for the beneficiaries under the statute, and the other for the benefit of the estate of the deceased. The two actions were tried together on Circuit, and in this Court. The defendant moved for a nonsuit and for a directed verdict in its favor on the grounds:

(1) That the uncontradicted evidence shows that the deceased was a trespasser; and (2) that the uncontradicted evidence shows that the deceased was guilty of contributory wantonness and recklessness in riding on the pilot of the engine.

1 1. The uncontradicted evidence does not show that the deceased was a trespasser. There is testimony to the effect that the deceased paid his fare to some one who demanded it of him and those standing with him, and it was for the jury to say whether or not it was to one authorized to receive it.

2 2. The uncontradicted evidence does not show that the deceased wantonly contributed to his own injury. The proposition upon which this whole appeal is based is not uncontradicted. The appellant claims that the deceased was standing on the pilot in front of the engine, and that, when the deceased undertook to ride on the pilot, he assumed voluntarily the most dangerous place on the train and thereby wantonly and recklessly contributed to his own death. One witness testified that Mr. Pearson was standing on the platform between the tender of the engine and the first coach. Another witness said that Mr. Pearson was pinned between the tender and the first coach, and that the platform upon which he had been standing was crushed. It is true that Mr. O’Grady, one of the witnesses, says they were standing on the pilot when the fares were paid, but does not say that the deceased was standing there when the collision occurred. Even if he had said so, there is conflict of testimony, and that made a question for the jury. It is true the platform is made to enable passengers to enter the train and is ordinarily not a place to ride; but in this case there is testimony to show that the train was so crowded that passengers were not only crowded out of the coaches, but even off of the platform into the.tender, and from the tender into the cab of the engine.

There was abundant evidence here to carry the question of contributory wantonness and recklessness to the jury.

3 There are seven exceptions, but they all assume that the deceased was riding on the pilot at the time the injury was received, and the requests to charge could not have been granted.

The judgment is affirmed.