Darwin v. Charlotte, Columbia & Augusta R. R.

Citations

• 23 S.C. 531
• 1885 S.C. LEXIS 132

Syllabus

<p>1. While a railroad company cannot be said to owe no duty to one who unlawfully intrudes himself upon its engines or cars, it does not owe to him the same duty that it owes to a passenger, or even to one of its employees.</p> <p>2. If a stranger takes his seat upon the pilot of the engine of a construction train, in sight of the engineer, and in that position is killed by a collision with a car upon the track, this would show no negligence' by the company; and action for damages being brought by the administrator of the deceased against the compariy, a non-suit should be granted.</p> <p>3. The proof by plaintiff of gVoss contributory negligence on his part does not authorize a non-suit; contributory negligence is a matter of defence, and presents a question of fact to be solved by a jury.</p> <p>4. When a trespasser places himself upon the pilot of an engine, and is permitted by the engineer, in violation of the rules of the railroad company, to remain there, and is killed, the company is not liable.</p> <p>5. Where a trespasser gets, without authority, upon the most dangerous place on a railroad engine and is killed, he is guilty of contributory negligence, and no recovery of damages for his death can be obtained against the company, oven if the company had been guilty of negligence, and although the engineer knew the person was in such place of danger and did not warn him off. In the case of a passenger, the rule would be different.</p> <p>6. Contributory negligence ceases to be a defence only where the injury complained of is shown to have been done wilfully or purposely, or is the result of such gross negligence as would imply wantonness or recklessness.</p> <p>Mr. Cíiiee Justice Simpson and Mr. Justice McGowan concurred in the result.</p>