Yorkville enquirer. [volume] (Yorkville, S.C.) 1855-2006, 1904-04-29
McKEOWN VS.. RAILROAD.

The Columbia State Of yesterday
contains the following outline Of the
opinion recently rendered by the su-
preme court in the case Of John G.
McKeown VS.. the Georgia Extension
Railroad company, involving the priv
ileges of the public in the use of a
railroad track as a highway, and the
question as to whether or not there
was any evidence to show responsible
ty of the railroad in connection with
the death Of the late Wesley McKeoWn:
This is an action for $4,000 damages
for the alleged wrongful death Of plain
tiffs intestate through the negligence
and wantonness Of the defendant
the complaint alleging that while the
intestate, who was deaf. was walking
along defendants track which, with
the knowledge and acquiescence Of de-
fendant, had long been used by the
public as a travel way, he was struck
by defendants locomotive (hauling a
freight train) negligently running with
out headlight and knocked down on
the side Of said track, receiving in
juries not necessarily fatal, and was
there left by defendants conductor and
engineer, who "recklessly, wantonly
and negligently failed to stop said
train and take care Of him, but con-
tinued on their way"
On the close of the plaintiffs evil
dence the circuit court (Judge Dant-
zler) ordered a nonsuit. The plaintiff
appealed.
On the question whether the deceased
was killed by the defendant there was
evidence to go to the jury.
If deceased was trespasser defen-
dant owed him the duty to do him
no wanton injury; If he was licensee
the defendant owed him the duty to
exercise ordinary care not to injure
him.
Whether the deceased was tres
passer or a licensee. and whether the
conduct Of the defendant was wanton
or merely negligent, are questions or
fact for the jury If there Is any testi-
mony tending to establish the issue
presented in that regard.
It is only when the testimony Is In
capable of any inference in support of
plaintiffs case that a nonsuit Is
allowable.
The evidence on the trial, to the
effect that the path alongside of de-
PENDANTS track where the intestate
was struck had, without objection from
the defendant, been used by the pub
lic-by pedestrians more fire.
quently than the public road near
by, being such that it might in the
minds Of the jury indicate that the
defendant through its agents knew OF
such use and by not objecting indi-
Gated a willingness for such use,
whilst 1t would not tend to show that
the public had acquired right OF way
by alienation or prescription so as to
give the public legal right to use the
pathway against the consent OF the
defendant yet 1t does tend to show
circumstances which call for the exer-
else Of ordinary care on the part or
defendant.
The trial judge erred in not submit
ting to the jury to determine what was
the deceased's relation to the defen-
dant's right Of way-whether as tres
passer or licensee-and in declaring
that deceased was trespasser.
The trial judge erred in not sub
mitting to the jury the question wheth-
er defendants conduct, under the cir
cumstances disclosed by the evidence,
was negligent or reckless and wanton.
Wantonness may be inferred from
conscious failure to observe due care.
Whether the want Of headlight
was a proximate cause Of the injury
and whether the train could have been
stopped in time to avoid injuring the
deceased If there had been headlight,
were questions for the jury under In
structions as to the law.
Judgment below reversed and a new
trial ordered. Opinion by Mr.. Justice
Jones. Filed April 10.
Messrs. Wilson & Wilson for appel
liant; Mr.. C. P. Sanders for respondent.