Opinion
12641
April 12, 1929.
Before MAULDIN, J., Clarendon, March, 1928. Reversed and remanded for new trial.
Action by G.A. Holladay against Atlantic Coast Line Railroad Company. From order of nonsuit plaintiff appeals.
Messrs. Dinkins Stukes, for appellant, cite: Nonsuit not proper where more than one inference may be drawn from evidence: 140 S.C. 123; 126 S.C. 450; 145 S.C. 489. Character of crossing question of fact for jury: 47 S.C. 375; 59 S.C. 429. Failure to give statutory signals is evidence of recklessness, willfulness and wantonness: 52 S.C. 325; 58 S.C. 70; 82 S.C. 321. Negligence is question of fact for jury: 140 S.C. 123. Goodman case 275 U.S. 66 minority rule: 56 A.L.R., 645. Cases distinguished: 27 F.2d 326.
Messrs. DuRant Sneeden, and Hyde, Mann Figg, for respondent, cite: Character of crossing: 34 S.C. 299; 47 S.C. 376; 59 S.C. 433; 97 S.C. 428; 131 S.C. 315; 140 S. ., 266; 145 S.C. 501. As to right of public to cross: 1 McC., 406; 2 Strob., 64; 63 S.C. 502, 524; 80 S.C. 377. As to contributory negligence: 32 L.R.A., 149; 37 L.R.A. (N.S.), 144; 145 S.E., 146; 275 U.S. 66. Distinguished: 27 Fed., 326. Duty of carrier and traveler at crossing: 121 S.C. 394. Cases distinguished: 94 S.C. 143; 76 S.C. 378; 121 S.C. 394; 145 S.C. 489.
April 12, 1929.
The opinion of the Court was delivered by
Action by plaintiff for actual and punitive damages sustained by him on account of the loss of the services of his minor son, and other damages incident to the physical injuries of his son, growing out of a collision of an automobile in which plaintiff's son was riding, at a traveled place, with an engine and train of cars of the defendant. Upon the completion of the evidence for the plaintiff, the trial Judge ordered a nonsuit. He based the order upon the fact that the crossing at which the accident occurred was not a public highway, but only a private crossing, and upon the authority of the case of B. O.R.R. Co. v. Goodman, 275 U.S. 66, 48 S.Ct., 24, 72 L.Ed., 167, 56 A.L.R., 645. The plaintiff appeals from the directed verdict against him.
This Court decided, in Key v. Railroad Co., 147 S.E., 625, that the Goodman case was not authority in the Courts of South Carolina. Since the judgment below is to be reversed, it is best that this Court not go into the facts of the case. We content ourselves by saying that the evidence favorable to the plaintiff's cause of action was sufficient to require that the case be submitted to the jury.
The judgment below is reversed, and the cause is remanded for a new trial.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES STABLER and CARTER concur.
I concur in the result, upon the authority of the Key case.