Cook v. Southern Railway

November 28, 1907. The opinion of the Court was delivered by The plaintiff's action in the court of Magistrate Moorman was to recover of the defendant forty dollars, the value of a hound, under this allegation: "That on the 31st day of August, 1906, while plaintiff was crossing a trestle, in the county above named, commonly known as Frost's, in the early morning between the hours of 5 and 6 o'clock, plaintiff was preceded by his hunting dog, a white-spotted hound, by name of Traveler, and hearing a train approaching and seeing the danger to the dog, plaintiff signaled to the engineer with a lantern and commenced to signal at a distance where the engineer could have seen the danger that this plaintiff was in, but that defendant, its agent and servant, wilfully, intentionally, and wantonly, and in utter disregard to plaintiff's property refused to stop the train, and ran over the dog, dismembering the animal, that had no chance to escape from the trestle." The judgment of the magistrate in favor of the defendant was reversed on appeal, the Circuit Judge holding "that the *Page 529 overwhelming weight of the evidence shows both negligence and wilfulness in running over the dog in question." There is no evidence whatever that the railroad company assented to the use of its trestle as a footway. On the contrary, the evidence was uncontradicted that there was a warning against such use, and the plaintiff testified that he supposed those who went on it did so at their own risk. The plaintiff's case then depends on the claim that he had a right to deliberately take his property on the defendant's railroad trestle and require the defendant to stop its trains, in order that he might transport his property over the trestle with convenience and safety. To sustain such a claim would be to make the use of its own property by the railroad company subordinate to its unlawful use by a trespasser. The law imposes no duty on the railroad company to keep a lookout for trespassers on its track.Smalley v. Ry. Co., 57 S.C. 243, 35 S.E., 489; Jones v.Ry. Co., 61 S.C. 556, 39 S.E., 758. There was no evidence that the defendant's servants saw the plaintiff's signals or knew that the dog was on the trestle. The difference between a case like this in which the plaintiff asserts a right of way over the trestle superior to that of the railroad company and those cases where liability attaches for the destruction of live stock wandering on the railroad, or of a dog seen by trainmen, disabled on the track from accident, is too obvious for discussion. The judgment of this Court is, that the judgment of the Circuit Court be reversed.