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lowed all payments made to any but him-way crossings creates no duty in favor of self, yet she was not executrix of her own persons working near the crossing, and wrong; for where there is a rightful execu- therefore a railroad company which fails tor, as here, there can be no executor de son to give the required signal is not liable for tort. Yet it resembled that case; and the injury to one at work near the crossing, court doubting much what to do in this case, through the frightening of his horse, al decreed by consent of counsel, that she though at the time of the injury he had should be allowed for all payments that taken the horse onto the highway on his she had made which were incumbent on way home, to reach which required travelthe executor to pay, according to the course ing away from the railroad track. of law, but that if she had made any pay. ments out of order and rule that the law

(March 12, 1915.) left the executor liable to, that such payments she should not be allowed for, if they of the common Pleas Circuit Court for

PPEAL by defendants from a judgment were to the prejudice of the executors.”

An executor de son tort at common law Lexington County in plaintiff's favor in an has no rights, and payments made by him action brought to recover damages for perover and above the value of the assets which come into his hands are entirely voluntary. sonal injuries alleged to have been caused He cannot by such payments place himself by defendants' negligence. Reversed. in the position of a creditor of the estate.

The facts are stated in the opinion. De la Guerra v. Packard, 17 Cal. 183.

Messrs. Johnstone & Cromer, for apW. W. A. pellants:

If persons know of the approach of trains without any signals being given, and

have an opportunity to take precautions SOUTH CAROLINA SUPREME

for their protection, they are in no position COURT.

to complain that the signals were not given. MURPHY HUTTO

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. Appts.

The violation of a statutory duty is the

foundation of an action for negligence in I-S. C. —, 84 S. E. 719.)

favor of such persons only as belong to the

class intended by the legislature to be proRailroad crossing signals failure

tected by the statute. to give - injury to person near crossing.

Everett v. Great Northern R. Co. 100 A statute requiring railroad companies Minn. 309, 9 L.R.A.(N.S.) 703, 111 N. W. to give signals when trains approach high- 281, 10 Ann. Cas. 294; Williams v. Chicago Note. Duty of railroad company to approaching crossing, see Lepard v. Michi

give crossing signals for the benefit gan C. R. Co. 40 L.R.A. (N.S.) 1105.
of persons near crossing, but not
about to use the same.

Duty as to persons on parallel road, not in

tending to cross track. The earlier cases on this question may be found in notes to Lonergan v. Illinois C. R. Supplementary notes in 17 L.R.A. 255; 14 Co. 17 L.R.A. 254; Missouri, K. & T. R. Co. L.R.A. (N.S.) 1000; and 31 L.R.A. (N.S.) V. Saunders, 14 L.R.A. (N.S.) 998; and 668. Warn v. Chicago G. W. R. Co. 31 L.R.A. Proof of a failure to give the statutory (N.S.) 667, of which this note is a con- signals before reaching a public crossing tinuation.

will not sustain an allegation that a person As to duty of railroad company operating was injured on a road parallel to a railroad tra or cars longitudinally along public by his horse becoming frightened at a street as to signals, see note to Southern whistle on a passing train. Rowe v. LouisR. Co. v. Caplinger, 49 L.R.A. (N.S.) 672. ville & N. R. Co. 143 Ky. 823, 137 S. W.

As to duty of railroad to give crossing 511. signals at place not technically a highway When a railroad train on approaching a crossing, but used as such, see Midland highway fails to begin at the statutory disValley R. Co. v. Shores, 49 L.R.A. (N.S.) tance to give the statutory signals, and it 814.

appears that if such signals had been given As to duty to give crossing signals for at the proper point, one driving along the protection of animals, see note to Campbell parallel highway near the crossover would v. Mobile & 0. R. Co. 46 L.R.A. (N.S.) 881. have had time and opportunity to guard

As to the places and operations to which against danger, a tardy blowing of the locostatutes or ordinances requiring lookout on motive whistle which, concurring with the trains apply, see note to King v. Tennessee noise of the moving train, frightens the C. R. Co. 51 L.R.A. (X.S.) 618.

driven horse and increases the brute's As to right of employee to rely on stat terror, so that the driver is injured while ute requiring signal to be given by train 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. of the rows there was a neighborhood road Southern R. Co. 82 S. C. 45, 61 S. E. 1079, which crossed the track. There was evi63 S. E. 5; Cooper v. Charleston & W. C. dence tending to prove that the crossing R. Co. 65 S. C. 214, 43 S. E. 682; Thomp was “a traveled place,” within the meaning son v. Seaboard Air Line R. Co. 81 S. C. of the statute. Plaintiff drove out into the 338, 20 L.R.A.(N.S.) 426, 62 S. E. 396; 2 road and stopped, intending to quit work L.R.A. Extra Anno. 630; Neely v. Charlotte, for the day and go to his house, which was C. & A. R. Co. 33 S. C. 139, 11 S. E. 636.

on the same side of the railroad, about 200 Mr. W. II. Sharpe also for appellants. Messrs. Melton & Sturkie and Thur- yards from the crossing. He had taken

hold of his horse's bridle preparatory to unmond, Timmerman, & Callison for respondent.

hitching him from the plow, when one of

defendant's trains ran by without giving Hydrick, J., delivered the opinion of the the statutory signals. The horse was so court:

frightened by the noise of the train that Plaintiff was plowing in his field about he jumped and jerked plaintiff down across 55 feet from defendant's track. The rows'the plow stock and injured him, for which ders the railroad company liable for the , & W. R.'Co. 162 Ky. 337, 172 S. W. 653, injury. St. Louis Southwestern R. Co. v. where a person was injured by a train at a Kilman, 39 Tex. Civ. App. 107, 86 S. W. private crossing, that the failure to give the 1050,

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

controlled by the law of West Virginia,

under which train signals at public crossSupplementing notes in 17 L.R.A. 254, ings are not intended for warning or and 31 L.R.A. (N.S.) 1000.

protection of travelers at private crossIt is to be observed that the cases in ings, and so a traveler at a private crosspoint under this leading are merely those ing who is struck by a passing train in which the person using the private cross cannot maintain an action against the ing relied upon the duty of the railroad company because it has failed to give company to give the signals at a near-by the statutory signal for a near-by public public crossing;, cases that turn upon the crossing, as a result of which failure he was duty of the railroad company to give the struck and injured. It may be observed signal for the private crossing are not with that some of the cases cited in the opinion in the scope of these notes.

in support of the Kentucky'rule did not inWhere a private crossing at which signals volve the question whether one using a of the approach of trains are not ac- private crossing near a public crossing may customed to be given is contiguous to a rely upon the duty to give signals for the public crossing at which such signals are public crossing, but the question whether customary and required to be given, and a the railroad company is bound to give sig. person using the private crossing is ac- nals for the private crossing when that has customed to rely upon the signals for the been the custom. These cases are therefore public crossing as a means of knowing of not within the scope of the present note. the approach of trains to the private cross- The statement as to the Kentucky rule is, ing, and such person is injured at the however, borne out by Cahill v. Cincinnati, private crossing by a train, the coming N. 0. & T. P. R. Co. 92 Ky. 345, 18 S. W. of which was not made known to him 2, and the Young Case, and other Kentucky because of the negligence of its engineer cases cited at page 1000 of the note in 14 in failing to give the customary signals L.R.A. (N.S.). of its approach at the public crossing, In Wavle v. Michigan United R. Co. 170 such failure renders the railroad com- Mich. 81, 135 N. W. 914, it was held that pany liable for his injuries. Chesapeake & an interurban railroad company under no 0. Ř. Co. v. Young, 146 Ky. 317, 142 S. W. statutory duty to give signals at highway 709.

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, be

a result of this failure while exer- cause the public crossing was 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

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

rung, or such whistle sounded, for at least The only negligence alleged as the ground thirty seconds before such engine shall be of recovery was the failure to give the sig moved; and shall be kept ringing or soundnals required by $ 3222 of the Civil Code, ing until such engine shall have crossed which reads: “A bell of at least 30 pounds such public highway or street or traveled weight and a steam whistle shall be placed place.” on each locomotive engine, and such bell The sole question therefore is: Did deshall be rung, or such whistle sounded, by fendant's negligence in failing to give the the engineer or fireman, at the distance of signals required by the statute at such at least 500 yards from the place where crossings give plaintiff a cause of action ? 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 l 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

In St. Louis & S. F. R. Co. v. Houston, warned. It is the relation of the owners of 27 Okla. 719, 117 Pac. 184, plaintiff was the car to the highway and its use, and to injured when a passenger train struck his the passengers on the car, which creates team while he was loading a car on a side and defines the duty. Outside of those re- track. There was no contention that the lations, it owes no duty to signify an in- engineer violated the section of the statute tention to cross a highway. Failure to per- which makes it a misdemeanor for an enform the duty is negligence as matter of gineer to omit to cause the bell to ring or law only when injury results therefrom to a steam whistle to sound at a certain dissomeone to whom the duty is owing.” tance from the place where the track crosses

In Central of Georgia R. Co. v. McKey, a public way, and there was no instruction 13 Ga. App. 477, 79 S. E. 378, reported only asked or given presenting that theory to the by syllabi, it is declared that a railroad jury. The evidence as to giving signals company, relating to a person not upon or seems to have been introduced for the purapproaching a public crossing, is under no pose of showing that the railway company duty to comply with the statutory require neglected some duty that it owed the plainments as to giving signals and checking tiff in the situation in which he was found. the speed of its train; and its failure to Ringing the bell and sounding the whistle comply with such requirements is not as to of a locomotive, said the court, are the such person negligence for which damages ordinary methods of warning persons and may be recovered. As the facts are not re- animals who seem to be in a place of danported it is not clear whether the court was ger from approaching trains, of their peril, speaking of a person near a public crossing, and in such cases evidence tending to prove but not about to use the same, or of a per- a failure to do so is proper to go to the son near or upon the track at a point where jury on the question of negligence, whether there was no public crossing.

the signals were required by the statute or

not. Duty as to trespassers and licensees. Supplementing notes in 17 L.R.A. 254; 14 Duty as to persons lately using crossings. L.R.A.(N.S.) 998; and 31 L.R.A.(N.S.) Supplementing notes in 14 L.R.A.(N.S.) 667.

999. Generally, as to duty of railroad company The failure to signal the approach of a to keep lookout for trespassers on tracks, train to a public crossing was held in Louissee notes to Frye v. St. Louis, I. M. & S. R. ville & N. R. Co. v. Survant, 19 Ky. L. Rep. Co. 8 L.R.A. (N.S.) 1069, and Martin v. 1576, 44 S. W. 88, 3 Am. Neg. Rep. 655, not Hughes Creek Coal Co. 41 L.R.A. (N.S.) to be the proximate cause of an injury to 264.

a person by her horse becoming frightened It was held in Seymour v. Illinois South- at a train while she was driving along a ern R. Co. 173 Ill. App. 326, that the stat- road parallel to the track after having ute requiring a signal to be given by a safely crossed a private crossing a mile locomotive 80 rods before reaching a high- distant from the public crossing, her failway crossing was not intended to impose ure to look along the line of the railroad a duty towards people at the side of a rail. before attempting to cross the track being road, whether lawful or unlawful, but was an act of negligence directly contributing enacted for the protection of passengers and to the fright of her horse, which was the of persons upon the public highway who cause of the accident and consequent inwere about to cross the railroad or enter jury.

J. D. C.

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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 stato train had passed, or being upon the crossutes by other courts and by the texting, or having just crossed, she might have writers. Williams v. Chicago & A. R. Co. hurried away to a safe distance, or have 135 III. 491, 11 L.R.A, 352, 25 Am. St. Rep. guarded against the danger of fright to 397, 26 N. E. 661, where numerous authori. her horse in several ways which will readily ties are cited. In some of the cases such suggest themselves. statutes are given a restricted construc- The difference between that case and this tion, and it is held that the signals are re- does not lie wholly in the fact that the one quired to protect travelers against actual was brought under the common law and the collision with passing engines or cars. In other under the statute, for, as was said in others, they are given a more liberal con- that case, the statute is cumulative of the struction, and it is held that they are in common law. And therefore, in actions untended also to enable them to secure their der the common law, proof of the failure to horses against taking fright at passing give the signals required by the statute at trains. This court has adopted the latter near-by crossings has been held in numerview. Clifford v. Southern R. Co. 87 S. C. ous cases to be competent evidence in sup325, 69 S. E. 513; Spears v. Atlantic Coast port of the charge of negligence. But such Line R. Co. 92 S. C. 297, 75 S. E. 498. failure has never been held to be negligence

Certainly, the statute was not intended per se, except as to those using or intendfor the protection of all persons who may ing to use such crossings. The true differbe on or near a railroad at any and allence lies in the duty which the railroad places, for, if it had been, signals of ap. companies owed to the parties in their reproach would have been required all along spective situations. In Miss Clifford's case, the railroad, and not merely for the dis- the company owed her the duty, in her situatance of 500 yards before reaching such tion, to give the crossing signals. In this crossings, and until the engines or cars had case, the company owed no such duty to the crossed them. The same inference is to be plaintiff, because his injury had no connecdrawn from the provision that, if engines or tion with the use or intended use of the cars are standing still within 100 rods of crossing. His situation with reference to such crossings, the signals must be given it was merely casual, and so was the fact for thirty seconds before they are moved, that he happened to be actually in the road, and must be continued until they shall have because he was not using the road with crossed, which is not required when engines respect to the crossing. His situation, or cars are standing still at all places. Nor therefore, is the same as if he had been was it intended for the protection of all in his field some distance from the road, persons who may be on a highway, street, and yet near enough for the signals to bave or traveled place which is crossed by a rail. afforded him protection. The signals were road, without regard to their use thereof, not required for the benefit of one so sitas the same may be affected by the dangers uated, for clearly, if they had been, they incident to such crossings. If it could be would have been required all along the extended to the protection of plaintiff under road. the circumstances stated, there would be The question which has been considered no reason why it should not be extended to is not whether the defendant owed plainprotect him, if he had been at the other tiffany duty, or, more specifically, the end of his field. Such an enlargement of duty of giving him any signal of the apthe scope of the legislative intention would proach of its train, for the allegation is not be warranted by any fair and legiti- that the defendant owed him the duty, in mate construction of the language used.

his situation, to give the crossing signals In the Clifford Case, which is relied upon required by the statute, and, for its neglect by the respondent, Miss Clifford was travel in respect of that supposed duty, his action ing along the highway, and was on the was sustained. crossing before she had any warning of the It is elementary that a duty may be owapproach of the train, and had just cleared ing to one in a given situation which would the track when the train passed without not be owing to him in another. In Stone having given any signal of its approach, v. Atlantic Coast Line R. Co. 96 S. C. 228, and missed the hind wheels of her buggy 80 S. E. 433, it was held that the railroad only a few inches. Her horse

so company owed Stone, a car repairer, no frightened that he threw her out and in- duty to exercise care for his protection jured her. She was clearly within the dan- while under a car in its yard without the ger against which the statute was intended protection of a blue flag, in violation of a to protect those using the highway, with re- rule of the company, In that case, the spect to the crossing thereof by the rail.court quoted with approval the principle

was

as thus stated in 29 Cyc. 419: “The duty | bond insuring the fidelity of a public officer must be owing to the person injured, and for a yearly premium can be had, although must be in respect of the very matter or he dies in the middle of the year; at least, act charged as negligence.”

where duties involving the principal hazard In the Clifford Case, it was pointed out I have all been performed before his death. that $ 3222, which requires the signals at

(March 20, 1915.) crossings, is independert of $ 3230, which materially modifies the principles of the common law in actions for damages in APPEAL by defendant from a decree of

the Chancery Court for Davidson Councases of injury to persons or property by ty overruling a demurrer to a bill filed to actual collision with engines or cars at such recover a part of the premium paid to decrossings, when the signals required by $ fendant by plaintiff's intestate for becom3222 have not been given. And while those ing surety on his bond. Reversed. cases in which there has been a collision, The facts are stated in the opinion. as well as those in which the question has Messrs. Aust & McGugin, for appellant: been considered whether the injury must The contract was an entirety, the risk be "at the crossing," are not directly in attached, and the complainant is not enpoint, consideration of them shows that titled to any refund of premium because this court has uniformly held that the sec- Captain Crouch did not live out the full tion requiring the signals is not applicable term of his office. in case of injuries to persons or property May, Ins. § 567; Joyce, Ins. § 1420; when there was no use or intended use of Tyrie v. Fletcher, Cowp. pt. 2, p. 666, 14 the crossings therein mentioned. Sims v. Eng. Rul. Cas. 502; Loraine v. ThomlinSouthern R. Co. 59 S. C. 246, 37 S. E. 836; son, 2 Dougl. K. B. 585; Bermon v. WoodCooper v. Charleston & W. C. R. Co. 65 S bridge, 2 Dougl. K. B. 781; Marine Ins. C. 214, 43 S. E. 682; Fowles v. Seaboard Co. v. Tucker, 3 Cranch, 357, 2 L. ed. 466; Air Line R. Co. 73 S. C. 306, 53 S. E, 534; Columbian Ins. Co. v. Lynch, 11 Jolins. 233; Hughes v. Southern R. Co. 82 S. C. 45, 61 Mailhoit v. Metropolitan L. Ins. Co. 87 Me. S. E. 1079, 63 S. E. 5. In the Cooper Case, 374, 47 Am. St. Rep. 336, 32 Atl. 989; Conit was held that the section did not apply tinental L. Ins. Co. v. Houser, 89 Ind. 258, to crossings at different levels.

reaffirmed in 111 Ind. 266, 12 N. E. 481; In the same case, the court said that, | Standley v. Northwestern Mut. L. Ins. Co. “independently of statute, it is the duty of 95 Ind. 254; 19 Cyc. 609; Joshua Hendy those in charge of a train to give notice of Mach. Works v. American Steam Boiler its approach at all points of known or rea- Ins. Co. 86 Cal. 248, 21 Am. St. Rep. 33, 24 sonably apprehended danger."

Pac. 1018; People ex rel. Kasson v. Rose, In this case there was no evidence that 174 Ill. 310, 44 L.R.A. 124, 51 N. E. 246; the place at which plaintiff was at work Bostick v. Maxey, 5 Sneed, 173.

one of known or reasonably appre- Defendant did not agree to make any hended danger. So that, even if we could refund of premium if Captain Crouch should view the case in its common-law aspect, die before the expiration of his term. there was no evidence of negligence.

Upon his death his right ceased, and he Judgment reversed.

could not transmit to his estate any inter

est 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.

earned.

Haynes v. State, 3 Humph. 480, 39 Am.

Dec. 187; Moore v. Sharp, 98 Tenn. 68, 38 TENNESSEE SUPREME COURT. S. W. 411; Nelson v. Sneed, 112 Tenn. 48,

83 S. W. 786. MRS. JOSIE A. CROUCH, Admrx., etc., of If an insurance risk once attaches, the Peter W. Crouch, Deceased,

whole premium is earned, unless the policy

is avoided by some wrongful act of the inSOUTHERN SURETY COMPANY, Appt. (131 Tenn. 260, 174 S. W. 1116.)

American Surety Co. v. Folk, 124 Tenn. Insurance fidelity return of un- 140, 135 S. W. 778, Ann. Cas. 1912D, 1024; earned premium.

Mutual L. Ins. Co. v. Kelly, 52 C. C. A. 154, No return of unearned premium upon a

114 Fed. 268; Dickerson v. Northwestern Note. The decision in CROUCH v. of his office or employment. It seems to be SOUTHERN SURETY Co. appears to be one of correct upon reason and principle, and will first impression as to the right to the re- doubtlessly be considered worthy authority turn of part of the premium on a policy should the same question again be presented insuring the fidelity of an officer or employee for judicial determination. upon his death or the premature termination,

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