lowed all payments made to any but himself, yet she was not executrix of her own wrong; for where there is a rightful executor, as here, there can be no executor de son tort. Yet it resembled that case; and the court doubting much what to do in this case, decreed by consent of counsel, that she should be allowed for all payments that she had made which were incumbent on the executor to pay, according to the course of law, but that if she had made any payments out of order and rule that the law left the executor liable to, that such pay

ments she should not be allowed for, if they were to the prejudice of the executors."

An executor de son tort at common law has no rights, and payments made by him over and above the value of the assets which come into his hands are entirely voluntary. He cannot by such payments place himself in the position of a creditor of the estate. De la Guerra v. Packard, 17 Cal. 183. W. W. A.

SOUTH CAROLINA SUPREME
COURT,

MURPHY HUTTO

V.

way crossings creates no duty in favor of persons working near the crossing, and therefore a railroad company which fails to give the required signal is not liable for injury to one at work near the crossing, through the frightening of his horse, although at the time of the injury he had taken the horse onto the highway on his way home, to reach which required traveling away from the railroad track.

(March 12, 1915.)

of the Common Pleas Circuit Court for PPEAL by defendants from a judgment Lexington County in plaintiff's favor in an action brought to recover damages for personal injuries alleged to have been caused by defendants' negligence.

Reversed.

The facts are stated in the opinion. Messrs. Johnstone & Cromer, for appellants:

If persons know of the approach of trains without any signals being given, and have an opportunity to take precautions for their protection, they are in no position to complain that the signals were not given. Barber v. Richmond & D. R. Co. 34 S. C. 450, 13 S. E. 630; Lee v. Northwestern R.

SOUTHERN RAILWAY COMPANY et al., Co. 84 S. C. 137, 65 S. E. 1031.

(― S. C.

Appts.

Railroad crossing signals failure to give injury to person near crossing.

A statute requiring railroad companies to give signals when trains approach high

The earlier cases on this question may be found in notes to Lonergan v. Illinois C. R. Co. 17 L.R.A. 254; Missouri, K. & T. R. Co. v. Saunders, 14 L.R.A. (N.S.) 998; and Warn v. Chicago G. W. R. Co. 31 L.R.A. (N.S.) 667, of which this note is a continuation.

As to duty of railroad company operating trains or cars longitudinally along public street as to signals, see note to Southern R. Co. v. Caplinger, 49 L.R.A. (N.S.) 672.

As to duty of railroad to give crossing signals at place not technically a highway crossing, but used as such, see Midland Valley R. Co. v. Shores, 49 L.R.A. (N.S.)

814.

As to duty to give crossing signals for protection of animals, see note to Campbell v. Mobile & O. R. Co. 46 L.R.A. (N.S.) 881. As to the places and operations to which statutes or ordinances requiring lookout on trains apply, see note to King v. Tennessee C. R. Co. 51 L.R.A. (N.S.) 618.

As to right of employee to rely on statute requiring signal to be given by train

The violation of a statutory duty is the foundation of an action for negligence in favor of such persons only as belong to the class intended by the legislature to be protected by the statute.

Everett v. Great Northern R. Co. 100 Minn. 309, 9 L.R.A.(N.S.) 703, 111 N. W. 281, 10 Ann. Cas. 294; Williams v. Chicago approaching crossing, see Lepard v. Michigan C. R. Co. 40 L.R.A. (N.S.) 1105.

Duty as to persons on parallel road, not intending to cross track.

Supplementary notes in 17 L.R.A. 255; 14 L.R.A. (N.S.) 1000; and 31 L.R.A. (N.S.) 668.

Proof of a failure to give the statutory signals before reaching a public crossing will not sustain an allegation that a person was injured on a road parallel to a railroad by his horse becoming frightened at whistle on a passing train. Rowe v. Louisville & N. R. Co. 143 Ky. 823, 137 S. W. 511.

a

When a railroad train on approaching a highway fails to begin at the statutory distance to give the statutory signals, and it appears that if such signals had been given at the proper point, one driving along the parallel highway near the crossover would have had time and opportunity to guard against danger, a tardy blowing of the locomotive whistle which, concurring with the noise of the moving train, frightens the driven horse and increases the brute's terror, so that the driver is injured while trying to restrain and calm the animal, ren

& A. R. Co. 135 Ill. 491, 11 L.R.A. 353, 25 | ran parallel with the track. Along the end Am. St. Rep. 397, 26 N. E. 661; Hughes v. Southern R. Co. 82 S. C. 45, 61 S. E. 1079, 63 S. E. 5; Cooper v. Charleston & W. C. R. Co. 65 S. C. 214, 43 S. E. 682; Thomp son v. Seaboard Air Line R. Co. 81 S. C. 338, 20 L.R.A.(N.S.) 426, 62 S. E. 396; 2 L.R.A. Extra Anno. 630; Neely v. Charlotte,

C. & A. R. Co. 33 S. C. 139, 11 S. E. 636.

of the rows there was a neighborhood road which crossed the track. There was evidence tending to prove that the crossing was "a traveled place," within the meaning of the statute. Plaintiff drove out into the road and stopped, intending to quit work for the day and go to his house, which was on the same side of the railroad, about 200 He had taken hold of his horse's bridle preparatory to unhitching him from the plow, when one of defendant's trains ran by without giving The horse was so

Mr. W. H. Sharpe also for appellants. Messrs. Melton & Sturkie and Thur-yards from the crossing. mond, Timmerman, & Callison for respondent.

Hydrick, J., delivered the opinion of the the statutory signals.

court:

Plaintiff was plowing in his field about 55 feet from defendant's track. The rows ders the railroad company liable for the injury. St. Louis Southwestern R. Co. v. Kilman, 39 Tex. Civ. App. 107, 86 S. W.

1050.

frightened by the noise of the train that he jumped and jerked plaintiff down across the plow stock and injured him, for which & W. R. Co. 162 Ky. 337, 172 S. W. 653, where a person was injured by a train at a private crossing, that the failure to give the statutory signals for a public crossing a few hundred yards distant did not render the

Duty as to persons using near-by private railroad company liable, the case being

crossing.

Supplementing notes in 17 L.R.A. 254, and 31 L.R.A. (N.S.) 1000.

It is to be observed that the cases in point under this heading are merely those in which the person using the private crossing relied upon the duty of the railroad company to give the signals at a near-by public crossing; cases that turn upon the duty of the railroad company to give the signal for the private crossing are not with in the scope of these notes.

Where a private crossing at which signals of the approach of trains are not accustomed to be given is contiguous to a public crossing at which such signals are customary and required to be given, and a person using the private crossing is accustomed to rely upon the signals for the public crossing as a means of knowing of the approach of trains to the private crossing, and such person is injured at the private crossing by a train, the coming of which was not made known to him because of the negligence of its engineer in failing to give the customary signals of its approach at the public crossing, such failure renders the railroad company liable for his injuries. Chesapeake & O. R. Co. v. Young, 146 Ky. 317, 142 S. W.

709.

controlled by the law of West Virginia, under which train signals at public crossings are not intended for warning or protection of travelers at private crossings, and so a traveler at a private crossing who is struck by a passing train cannot maintain an action against the company because it has failed to give the statutory signal for a near-by public crossing, as a result of which failure he was struck and injured. It may be observed that some of the cases cited in the opinion in support of the Kentucky rule did not involve the question whether one using a private crossing near a public crossing may rely upon the duty to give signals for the public crossing, but the question whether the railroad company is bound to give signals for the private crossing when that has been the custom. These cases are therefore not within the scope of the present note. The statement as to the Kentucky rule is, however, borne out by Cahill v. Cincinnati, N. O. & T. P. R. Co. 92 Ky. 345, 18 S. W. 2, and the Young Case, and other Kentucky cases cited at page 1000 of the note in 14 L.R.A. (N.S.).

In Wavle v. Michigan United R. Co. 170 Mich. 81, 135 N. W. 914, it was held that an interurban railroad company under no statutory duty to give signals at highway or other crossings was not bound to signal While it is the rule in Kentucky that the approach of a car to a highway crosspersons using a private crossing who are in ing for the benefit of one using a near-by the habit of depending upon signals re- private crossing on his farm, even though quired to be given for a near-by public the custom of whistling at the highway crossing are entitled to the benefit and crossing was known to those living in the protection of such signals, and if the com- vicinity thereof; whether the whistle was pany fails to give the required public in fact sounded at the public crossing crossing signals, and the traveler using was, however, material as affecting the the near-by private crossing is injured question of contributory negligence, bea result of this failure while exer- cause the public crossing was So near cising care for his own safety, he may re- the private crossing. The court stated: cover damages for the injury thus sus- "In the absence of a statute, the duty of tained, it was held in Thacker v. Norfolk | defendant to sound a whistle before pro

as

he recovered judgment against defendant | rods of such crossing, such bell shall be for $800.

rung, or such whistle sounded, for at least thirty seconds before such engine shall be moved; and shall be kept ringing or sounding until such engine shall have crossed such public highway or street or traveled place."

The sole question therefore is: Did defendant's negligence in failing to give the signals required by the statute at such crossings give plaintiff a cause of action?

The only negligence alleged as the ground of recovery was the failure to give the signals required by § 3222 of the Civil Code, which reads: “A bell of at least 30 pounds weight and a steam whistle shall be placed on each locomotive engine, and such bell shall be rung, or such whistle sounded, by the engineer or fireman, at the distance of at least 500 yards from the place where the railroad crosses any public highway or The intention to be gathered from the street or traveled place, and be kept ring- language of the statute is that the signals ing or whistling until the engine has crossed were required for the protection of persons such highway or street or traveled place; who may be using a highway, street, or and if such engine or cars shall be at a traveled place, against the dangers incident standstill, within a less distance than 100 to the crossing thereof by engines and cars. pelling a car over a public highway, as- | upon its crossing; consequently where one, suming there is such a duty, arises out while unloading stone at the side of a of the fact that it is about to cross the track, was injured when an engine struck highway at speed, of which fact others hav- his horse, it was held that such a statute ing equal right to use the highway, and de- did not extend to the case. siring to do so, should in prudence be warned. It is the relation of the owners of the car to the highway and its use, and to the passengers on the car, which creates and defines the duty. Outside of those relations, it owes no duty to signify an intention to cross a highway. Failure to perform the duty is negligence as matter of law only when injury results therefrom to someone to whom the duty is owing."

In Central of Georgia R. Co. v. McKey, 13 Ga. App. 477, 79 S. E. 378, reported only by syllabi, it is declared that a railroad company, relating to a person not upon or approaching a public crossing, is under no duty to comply with the statutory require ments as to giving signals and checking the speed of its train; and its failure to comply with such requirements is not as to such person negligence for which damages may be recovered. As the facts are not reported it is not clear whether the court was speaking of a person near a public crossing, but not about to use the same, or of a person near or upon the track at a point where there was no public crossing.

Duty as to trespassers and licensees. Supplementing notes in 17 L.R.A. 254; 14 L.R.A. (N.S.) 998; and 31 L.R.A. (N.S.) 667.

Generally, as to duty of railroad company to keep lookout for trespassers on tracks, see notes to Frye v. St. Louis, I. M. & S. R. Co. 8 L.R.A. (N.S.) 1069, and Martin v. Hughes Creek Coal Co. 41 L.R.A. (N.S.)

264.

It was held in Seymour v. Illinois Southern R. Co. 173 Ill. App. 326, that the statute requiring a signal to be given by a locomotive 80 rods before reaching a highway crossing was not intended to impose a duty towards people at the side of a railroad, whether lawful or unlawful, but was enacted for the protection of passengers and of persons upon the public highway who were about to cross the railroad or enter

In St. Louis & S. F. R. Co. v. Houston, 27 Okla. 719, 117 Pac. 184, plaintiff was injured when a passenger train struck his team while he was loading a car on a side track. There was no contention that the engineer violated the section of the statute which makes it a misdemeanor for an engineer to omit to cause the bell to ring or a steam whistle to sound at a certain distance from the place where the track crosses a public way, and there was no instruction asked or given presenting that theory to the jury. The evidence as to giving signals seems to have been introduced for the purpose of showing that the railway company neglected some duty that it owed the plaintiff in the situation in which he was found. Ringing the bell and sounding the whistle of a locomotive, said the court, are the ordinary methods of warning persons and animals who seem to be in a place of danger from approaching trains, of their peril, and in such cases evidence tending to prove a failure to do so is proper to go to the jury on the question of negligence, whether the signals were required by the statute or

not.

Duty as to persons lately using crossings.
Supplementing notes in 14 L.R.A. (N.S.)

999.

The failure to signal the approach of a train to a public crossing was held in Louisville & N. R. Co. v. Survant, 19 Ky. L. Rep. 1576, 44 S. W. 88, 3 Am. Neg. Rep. 655, not to be the proximate cause of an injury to a person by her horse becoming frightened at a train while she was driving along a road parallel to the track after having safely crossed a private crossing a mile distant from the public crossing, her failure to look along the line of the railroad before attempting to cross the track being an act of negligence directly contributing to the fright of her horse, which was the cause of the accident and consequent injury. J. D. C.

train had passed, or being upon the crossing, or having just crossed, she might have hurried away to a safe distance, or have guarded against the danger of fright to her horse in several ways which will readily suggest themselves.

This is the uniform construction which has | road, for, if the signals had been given, she been given to it by this court, and the same might have delayed her crossing until the construction has been given similar statutes by other courts and by the text writers. Williams v. Chicago & A. R. Co. 135 Ill. 491, 11 L.R.A. 352, 25 Am. St. Rep. 397, 26 N. E. 661, where numerous authorities are cited. In some of the cases such statutes are given a restricted construction, and it is held that the signals are required to protect travelers against actual collision with passing engines or cars. In others, they are given a more liberal construction, and it is held that they are intended also to enable them to secure their horses against taking fright at passing trains. This court has adopted the latter view. Clifford v. Southern R. Co. 87 S. C. 325, 69 S. E. 513; Spears v. Atlantic Coast Line R. Co. 92 S. C. 297, 75 S. E. 498.

Certainly, the statute was not intended for the protection of all persons who may be on or near a railroad at any and all places, for, if it had been, signals of approach would have been required all along the railroad, and not merely for the distance of 500 yards before reaching such crossings, and until the engines or cars had crossed them. The same inference is to be drawn from the provision that, if engines or cars are standing still within 100 rods of such crossings, the signals must be given for thirty seconds before they are moved, and must be continued until they shall have crossed, which is not required when engines or cars are standing still at all places. Nor was it intended for the protection of all persons who may be on a highway, street, or traveled place which is crossed by a railroad, without regard to their use thereof, as the same may be affected by the dangers incident to such crossings. If it could be extended to the protection of plaintiff under the circumstances stated, there would be no reason why it should not be extended to protect him, if he had been at the other end of his field. Such an enlargement of the scope of the legislative intention would not be warranted by any fair and legitimate construction of the language used.

The difference between that case and this does not lie wholly in the fact that the one was brought under the common law and the other under the statute, for, as was said in that case, the statute is cumulative of the common law. And therefore, in actions under the common law, proof of the failure to give the signals required by the statute at near-by crossings has been held in numerous cases to be competent evidence in support of the charge of negligence. But such failure has never been held to be negligence per se, except as to those using or intending to use such crossings. The true difference lies in the duty which the railroad companies owed to the parties in their respective situations. In Miss Clifford's case, the company owed her the duty, in her situation, to give the crossing signals. In this case, the company owed no such duty to the plaintiff, because his injury had no connection with the use or intended use of the crossing. His situation with reference to it was merely casual, and so was the fact that he happened to be actually in the road, because he was not using the road with respect to the crossing. His situation, therefore, is the same as if he had been in his field some distance from the road, and yet near enough for the signals to have afforded him protection. The signals were not required for the benefit of one so situated, for clearly, if they had been, they would have been required all along the road.

The question which has been considered is not whether the defendant owed plaintiff any duty, or, more specifically, the duty of giving him any signal of the approach of its train, for the allegation is that the defendant owed him the duty, in his situation, to give the crossing signals required by the statute, and, for its neglect in respect of that supposed duty, his action was sustained.

It is elementary that a duty may be owing to one in a given situation which would not be owing to him in another. In Stone v. Atlantic Coast Line R. Co. 96 S. C. 228, 80 S. E. 433, it was held that the railroad

In the Clifford Case, which is relied upon by the respondent, Miss Clifford was travel ing along the highway, and was on the crossing before she had any warning of the approach of the train, and had just cleared the track when the train passed without having given any signal of its approach, and missed the hind wheels of her buggy only a few inches. Her horse was so company owed Stone, a car repairer, no frightened that he threw her out and injured her. She was clearly within the danger against which the statute was intended to protect those using the highway, with respect to the crossing thereof by the rail

duty to exercise care for his protection while under a car in its yard without the protection of a blue flag, in violation of a rule of the company. In that case, the court quoted with approval the principle

bond insuring the fidelity of a public officer for a yearly premium can be had, although he dies in the middle of the year; at least, where duties involving the principal hazard have all been performed before his death.

Upon his death his right ceased, and he could not transmit to his estate any interest in the office or any right to fees for Gary, Ch. J., and Fraser, Watts, and services which he had not performed and Gage, JJ., concur.