Yorkville enquirer. [volume] (Yorkville, S.C.) 1855-2006, 1886-01-28
SUPREME COURT DECISION.
ACTION AGAINST RAILROAD BY TRESPASS
ER--CONTRIBUTORY NEGLIG ENCE

ACTION AGAINST RAILROAD BY TRESPASS-
ER--CONTRIBU UTORY NEGLIGE ENCE
Darwin, Administrator, VS.. the Charlotte, 90
lumbia and Augusta Railroad Company, ct aI
This is an action to recover damages lor
the killing of plaintiffs intestate by the
Chester and Lenoir Narrow Gauge Rallroad
train, the action being brought against the
lessees of the Chester and Lenolr Mario"
Gauge Railroad Company. The engineer
in charge of a construction train uncoupled
his engine from the train and went down
the road for supply of water, the deceased
going with him on the engine.
Returning, Darwin, the deceased, was
riding on the pilot of the engine, and when
it reached the cars it collided with them
and Darwin was crushed between the en-
CINE and cars, causing his simmediate death.
The pilot is the most dangerous place Tor
one to ride on, and one of the printed rules
of the company was that the engineer should
not allow anyone except the fireman or
roadmaster to ride on the engine under pen
atty of discharge There was no positive
testimony that the engineer knew that
Darwin was on the engine at the time OF
the accident.
Upon the case as presented the jury rem
dered a verdict for the plaintiff, and defend
ant appealed, alleging error in refusing the
motion for non-suit and in refusing certain
requests to charge.
The Supreme Court decides upon the
points made as, follows:
The deceased was a trespasser, and a rail-
road company does not owe the same duty
to trespasser as it does to passenger or
one Of its employees. 1t takes much
stronger case to make out negligence as to
trespasser than is required in ordinary cases.
In the case of an injury sustained by one,
of his servants by reason Of the negligence
of felloW-servant, the master is not liable
unless he has been guilty of negligence in
selecting orsupervsing such fellow-servant.
See Gunter vs.. Graniteville Co., 10 5. o.,
456. In this case, even assuming that the
accident was caused by the negligence Of
the engineer, yet if the deceased had been
fellow servant instead of trespasser, the
plaintiff could not recover against the COM
pany unless the proof went farther, and
showed negligence either in the employ
ment or the supervision of the engineer.
Shall the company be held to hold higher
duty to trespasser than it does to one OF
| its servants?
There is no evidence that the company
had been guilty of any negligence in em,,
ploying the engineer, or that it knew or had
any reason to suspect that he was negligent
| in the discharge of his duties, nor was there
any testimony tending to show that the
company had been negligent in supervising
the conduct of the engineer. The non-sult
should have been granted upon this ground.
| Contributory negligence is a matter OF
defence and presents question OF fact to be
solved by jury. Carter VS.. Columbia and
Greenville Railroad Company, 19 S. c., 70;
and the question in all the cases is, has the
damage or injury complained of been occa-
stoned entirely by the negligence or i'm
proper conduct of the defendant, or not
withstanding such improper act of the de-
fendant, would the injury have been avoided
but for the negligence or want of ordinary
care of the plaintiff? In the former case
the plaintiff is entitled to recover. In the
latter the defendant is entitled to the ver-
diet See Gunter VS.. Graniteville Compa-
ny, supra.
The case of Railroad Company VS.. Jones,
95 L. S., 439, decides that when one volun-
tarily places himself in position on rail-
road train known to be dangerous, he cam
not recover damages from the company for
injuries sustained by collision upon the
ground of contributory negligence, even
though his position was known to the agents
of the company, and the collision was occa-
stoned by defendants negligence.
In this case the deceased was clearly gull
ty of contributory negligence, and the un-
fortunate result was due to his own unlaW-
| 1ul anu TeCklcSS tCl. Lie lttCG tiioI ~ "oo
known to the conductor or other officer in
charge of train that the person injured had
by his own recklessness placed himself in a
dangerous position does not affect the ques-.
ton, and such fact cannot have the effect of
overcoming the defence of contributory
negligence. Flower vs. Penn. R. R. Co.,
60 Penn. ST., 21O; Eaton VS.. Delaware, L.
w. r. R. Co., 81 n. Y, 3S2; Everhart VS..
Terre Haute and Ind. r. R. Co., IS Ind,
1872; n. O. and j. r. r. Co. VS. Harrison, 4S
Miss, 49,
Contributory negligence ceases to be a
defence only where the injury complained
of is shown to have been done wilfully or
purposely, or where it was the result of
such gross negligence as would imply wan
tonness or recklessness. Penn. Co. VS.. Sim
clair, G2 Ind, 30l
Judgment below reversed and new trial
granted. Opinion by McIver, A. J.
Filed November 2, 1885.
Mr.. Rion for appellant Messrs. Wilson
& Wilson for respondent.