Opinion
10788
December 19, 1921.
Before FEATHERSTONE, J., County Court, Greenwood, March, 1921. Affirmed.
Actions by H.D. Wheelis and J.L. Leary against Southern Railway Co., heard together. Judgments for plaintiffs and defendant appeals.
Messrs. Bonham Price, for appellant, cite: Traveler must use his faculties in proportion to danger impending: 63 S.C. 275. Charge as to "Stop, Look and Listen" was proper: 104 S.C. 111.
Messrs. Tillman, Mays Featherstone, for respondents, cite: Verdict should not have been directed: 117 S.C. 109 S.E., 123; 105 S.C. 128.
December 19, 1921. The opinion of the Court was delivered by
These appeals were heard together. They grew out of a collision at a crossing in the City of Greenwood, between one of the appellant's freight trains and a truck owned by the respondent, H.D. Wheelis, and driven by respondent, J. L. Leary.
The causes were tried before Hon. C.C. Featherstone, County Judge, and a jury, and resulted in a verdict in favor of Wheelis for $400.00 and Leary for $200.00.
After entry of judgment defendant appeals, and by three exceptions imputes error.
The first two impute error in refusing motion made by defendant for a directed verdict in its behalf, and the other exception imputes error in refusing to charge the seventh request submitted by appellant.
The first two exceptions are overruled. The collision occurred in the City of Greenwood in a thickly populated section. The China berry trees were on the right of way of defendant's railway. The defendant's agents and servants knew this, and the question of negligence was clearly a matter for the jury to determine. His Honor committed no error in refusing to direct a verdict as asked for. Callison v. Railway Co., 106 S.C. 128; 90 S.E., 260; Wideman v. Hines, 117 S.C. 516; 109 S.E., 123.
Exception 3 is overruled. His Honor fully charged the law applicable to the case, in his own language, and the defendant was in no manner prejudiced by his charge.
Judgment affirmed.
MR. CHIEF JUSTICE GARY and MR. ASSOCIATE JUSTICE FRASER and MR. ASSOCIATE JUSTICE COTHRAN concur upon the binding authority of the Wideman case, 117 S.C. 109 S.E., 123.