Opinion
826
July 5, 1922.
Before TOWNSEND, J., Bamberg, November, 1921. Affirmed.
Action by C.W. Rentz, Jr., et al., against James C. Davis, Director General of Railroads. From order of nonsuit plaintiff appeals.
Mr. E.H. Henderson, for appellant, cites: What is "traveled place": 3 Ell. Railroads, 1644; 33 Cyc., 756, 1145; 22 R.C.L., 938; 49 L.R.A. (N.S.), 660; 37 L.R.A., 616; 2 Am. St. Rep., 155; 3 Am. St. Rep., 638; 26 Am. St. Rep., 187; 79 Am. St. Rep., 149; 44 L.Ed., 447. Point was a crossing if not an intersection: 63 S.C. 388; 41 S.C. 20; 59 S.C. 429; 33 Cyc., 920; 1 Civ. Code 1912, Secs. 3222, 3230. Traveler entitled to protection at crossing whether intending to use it or not: 51 S.C. 495. And on public street if not at crossing: 72 S.C. 389; 64 S.C. 104; 22 R.C.L., 940. Proper lookout would have detected danger: 93 S.C. 340; 57 S.C. 205; 70 S.C. 191; 89 S.C. 161; 68 S.C. 446; 105 S.C. 300; 33 Cyc., 902, 980. Negligence not to stop after first striking auto: 22 R.C.L., 963. Question for the jury: 25 S.C. 58; 76 S.C. 300; 61 S.C. 404; 115 S.C. 115; 81 S.C. 203; 105 S.C. 300; 3 Ell. Railroads, 1766; 33 Cyc., 836, 1111, 1126, 1155; 97 N.W., 1112; 22 R.C.L., 973; 103 S.C. 326. Failure to give signal at crossing evidence of willfulness: 93 S.C. 551; 91 S.C. 548; 99 S.C. 284; 115 S.C. 115; 106 S.C. 123; 101 S.C. 8; 85 S.C. 23; 52 S.C. 329. Custom of parking at point of accident admissible: 33 Cyc., 884.
Messrs. Harley Blatt, for respondent, cite: Crossing statute not for the protection of person parking cars on the right-of-way: 1 Civ. Code 1912, Sec. 3222; 100 S.C. 181; 34 S.C. 444.
July 5, 1922. The opinion of the Court was delivered by
In Blackville the railroad runs right down the center of the main business street. The railroad tracks are level with the street, and people constantly cross at the place where the collision occurred. The plaintiffs loaned their car to another. The driver parked the car too near the railroad track and left it standing there, and it was struck and injured by a box car on a passing train.
There was no evidence that the street was narrow. There was no word of testimony to show that the car could not just as easily have been parked a foot further from the track, or three feet further, for that matter. There was evidence to show that the bell did not ring, nor the whistle blow while the train came down the street. There was no evidence to connect the accident with the failure. The plain, simple, undisputed fact is that the driver of the car without any excuse for doing so, parked the car too near the track. The trial Judge granted a nonsuit, and we do not see that there was anything else to do. There was no evidence to show that the servants of the defendants should have known that the car was too close, or could have stopped the train in time, after they could have seen it. The driver, with all the time he needed, put the car in the wrong place.
The judgment is affirmed.