
    11028
    MOUNTCASTLE v. A. C. L. R. CO.
    (114 S. E., 631)
    Railroads — Negligence and Contributory Negligence for Jury. — In an action against a railroad company for injuries to another company’s employee, struck by defendant’s train, at a place employees • were in the habit of crossing a track to go to a signal tower, evidence on the issues of negligence and contributory negligence held for the jury.
    Before Townsend, J., Charleston, October, 1921.
    Affirmed.
    Action by John T. Mountcastle against the Atlantic Coast Tine Railroad Company, a corporation, and another. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    
      Messrs. Rutledge, Hyde & Mann, for appellants,
    cite: One crossing railroad track where there is no crossing with knowledge, is guilty of contributory negligence that will prevent recovery: 20 R. C. T., 108; 30 Am. Rep., 371; 122 U. S’., 199; 147 U. S., 238. Failure to give signals must 
      
      be proximate cause: 95 S. C., 208; 78 S. C., 374; 36 S. C., 444; 94 S. C., 143; 106 S. C.; 123. And traveler must exercise reasonable care: 181 Fed., 799; 174 U. S., 379; 166 Fed., 271.
    
      Messrs. W. P. Tillinghast and Wm. Henry Parker, for respondent,
    cite: Weight to be given to views of trial Judge: 75 S. C., 512. Conflict of testimony was for the jury: 80 S. C., 7; 76 S. C., 320; 106 S. C., 123.
    October 9, 1922.
   The opinion of the Court was delivered by

Mr. Justice Fraser.

Near the City of Charleston there is a place where the Atlantic Coast Line Railroad Company and the Southern Railway each have double tracks. On the Coast Line side there is what is known as a connection tower, used jointly by the two railroad companies, to give out instructions to employees and for giving the correct time. The plaintiff was a switchman on a Southern engine that was stopped by a red signal near the tower. Thé plaintiff, the evening before the accident, borrowed.a lantern from some one in the tower and, as his engine was waiting permission to continue on its way, took up the lantern to return it. A long freight train was moving south on the Coast Line track. As the plaintiff was crossing the north-bound track he was struck by a train moving north on that track. On the trial of the case the defendants moved for a non-suit and the direction of a verdict. Both motions were refused. The judgment was for the plaintiff, and the defendants appealed.

There is really only one question in the case, to wit: Was there any evidence to go to the jury? There was abundant evidence. There was evidence that the engine upon which the defendant was working had made a temporary stop near the tower and that the employees . were in the habit of going across the tracks just at this place in the discharge of their duty; that there was another train passing southward on the Coast Line track; that the train that struck and injured the plaintiff was running at a high rate of speed; that this train was running rapidly over a ■place where employees of its own road and of the Southern might be expected to pass, without giving any signals at all, and when the noise of its approach would be confused with the noise of the other passing train. There was evidence to show that neither the engineer nor the fireman saw the plaintiff, though he was in plain sight, if they were looking ahead and paying the slightest attention to their own movements, or the movements of those employees they should have expected to be there.

From those facts the jury might have inferred, and manifestly did infer, that the train which struck the plaintiff was being run with a reckless and willful disregard of human life. The evidence that the plaintiff acted with reckless disregard of his own safety was not conclusive. He said that he did look both ways and did not see the approaching train. The two trains were going in different directions. The jury might have inferred that their contrary movements were confusing and would have misled a man of ordinary prudence and power of observation. It is said, however, that.the plaintiff could have made a detour, and then the train would have passed and the detour would have avoided the accident. The detour would have taken the plaintiff across this same track at another place, which would have been equally dangerous, except for the mere element of time and its safety was only revealed by subsequent events.

The non-suit and directed verdict were properly refused, and the judgment is affirmed.  