White v. Railroad Co.

Citations

• 30 S.C. 218
• 9 S.E. 96
• 1889 S.C. LEXIS 93

Syllabus

<p>1. In action to recover damages for an injury done by defendant’s train to plaintiff and his team at a railroad crossing, there being a conflict of testimony as to whether the engine had given the signal required by statute, the Circuit Judge erred in charging: “Aman might lie down on the track and rely on being warned of the approach of the railroad train by the sounding of the w'histle and the ringing of the bell; whereas if the law did not enjoin specifically those precautions on the part of the railroad company, the man might be guilty of negligence, and w'ould not be on the lookout when he knew he was approaching a railroad crossing.” What facts constitute gross negligence must be left to the jury.</p> <p>2. The judge being requested to charge “that if the jury found from the evidence that the injury to the plaintiff was the result of an accident, without fault on the part of the railroad company or its servants, then the railroad company is not liable,” he erred in adding: “that is, if there w'as no negligence at all established against the railroad company, the railroad is not liable,” for the jury may have understood this qualification to mean that the defendant must be free from all fault, whether the cause of the injury or not.</p> <p>3. There was no error in charging the jury: “The allegation of the complaint being negligence of a particular character, the injury to entitle the plaintiff to recover must be from negligence of that hind. That is contended for by the defendant and is sound law.”</p> <p>4. In charging the jury that the evidence to establish contributory negligence on the part of the plaintiff must be clear and convincing, there was no appealable error on the judge’s part in failing to add that the evidence to establish negligence against defendant must also be clear and conclusive.</p> <p>5. This’ court refused to impute error to a refusal of a new trial, where the motion was based on questions of fact, and excessive damages.</p>