Settlemeyer v. Southern Railway

The opinion; of the Court was delivered by Mr. Justice Woods. The allegations of negligence and injury resulting therefrom on which the plaintiff sought to recover from the defendant are as follows: “That on or about the ninth day of July, one thousand nine hundred and nine, while driving along the public highway leading from Cherokee Falls to his home at Gaffney, in said State and county, and while attempting- to cross the tracks of the defendant at a regular crossing, at the depot for Cherokee Falls, á freight car being used 'by the defendant was across the public road or highway, and had negligently and carelessly been left across said public road, for a long time, in violation of the statute laws of this State, and a wilful disregard of the rights of the plaintiff and the public; and in- order to continue his journey, the plaintiff was forced, by reason of the .wilful and negligent blocking of said public road, or crossing, to drive around and above the regular crossing, to cross defendant’s tracks. “jDhat the .freight car which was wilfully and negligently left standing across said public crossing by the defendant, its lessee,’ agent, servant and representatives, was very offensive, in that it smelled very foully, and gave forth a great sfench, that plaintiff’s horse was made afraid and became very much frightened by reason of the foul smell and great *149 stench arising from said car, became unmanageable, and in surging’ and violent effort to get away from, the foul smelling car, which had. been left standing across the public crossing, as aforesaid, ran violently against the 'bank of the cut of the railroad, which came down even with the public road; on the opposite side of the railroad, and1 just above1 the public crossing; anid by reason of which the plaintiff was thrown violently from his 'buggy and was greatly hurt and painfully injured1. * * *” The Circuit Judge directed a verdict on the. ground that there was no testimony tending to prove that any act of negligence of -the defendant alleged in the complaint was the proximate cause of the injury. ■ On the vital point the plaintiff testified in substance that a car in which wild animals were kept by a showman had been left on, the track so as to project across the wagon, trade of the road, leaving, 'however, room between1 the car and the station building for vehicles to pass; that as he approached the car riding in a buggy his horse was frightened and excited by the noisome odors emitted from the car, the fright of the horse causing’ plain-r tiff to form the intention of turning back; that at this juncture he saw a box or case of rabbits on the station platform and that the noise made by the jumping of the rabbits in the wire cage so increased the fright of the horse that he became unmanageable and ran around the car against the embankment, throwing plaintiff out of the buggy. It thus appears that there was evidence of two causes which frightened the horse and made 'him run away—the foul odor from the car, and the noise made by the rabbits. The complaint contains no allegation of negligence against the defendant with respect to the noise made by the rabbits, and- if the evidence had shown that the horse was frightened by that alone the case would have failed; for a plaintiff cannot repover on proof that he was injured by an act of negligence by the defendant not charged in the complaint But while, it is necessary to recovery to' show that am act, of. megligepcg *150 alleged in the complaint was one of the proximate causes, it is not essential to show that it was the sole proximate cause. There may be a recovery upon evidence tending' to show that an injury was received 'by reason) of the negligence alleged in the complaint operating -as a proximate cause in conjunction with another independent -cause. This rule is familiar and generally recognized. Thompson v. Seabord A. L. Ry., 78 S. C. 384, 58 S. E. 1094; 81 S. C. 333, 63 S. E. 396, 20 L. R. A. (N. S.) 426n; Blakely v. Laurens County, 55 S. C. 422, 33 S. C. 583, 29 Cyc. 497. As the evidence tended to show that the foul odors of wild animals coming from the car, alleged in the complaint as the proximate cause, was one of the proximate causes of the fright, the runaway, and the resulting injury to the plaintiff, it follows under the principle above stated that this was sufficient to- require the submission of the issue of proximate cause to the jury, if leaving the car 'on the crossing was an act of negligence. ■ On this last point, it is important to observe that the car was not stopped on the crossing temporarily as a part of a passing train, but was lef-t standing for several days across the road where the defendant must have known that persons' were ’ continually passing in vehicles drawn by horses and mules. Aside from the common knowledge on the subject, the fa'ct that the plaintiff’s horse and other horses w-er-e excited and frightened by the odor of wild animals made the issue- one for the jury to- determine whether the defendant should have known that the presence of the car was dangerous to public travel, and whether due care required that it should have placed such a car further away from the crossing. The judgment of the Circuit Court is reversed. Mr. Justice Eraser concurs.