November 28, 1907. After careful examination of the petition for rehearing we are unable to discern any issue that has been overlooked in the opinion of this Court.

The petition is, therefore, dismissed, and the order staying the remittitur is revoked. *Page 531

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.

The plaintiff testified: "Bennett and I and the dog were on Frost trestle of Southern Railway Company, in Richland County. I saw engine headlight about half a mile from me; I waived my lighted lantern to make the train stop, but it came right on, did not even slow up. Not running very fast. It ran over the dog, which was about forty yards from me. I barely had time to get out of way of engine." *Page 530

Ben P. Bennett testified: "I was with Mr. Cook on the trestle; saw the dog killed by train; saw the men on the engine, and saw Mr. Cook signaling with his lighted lantern."

Cross-examination: "I was coon hunting. I slipped out on a sill to save myself. Trestle was a long one. Trestle was just above Frost's station. Don't know just how long, but a real long one. Dog killed near middle of trestle. Could not have run to the end before he would have been struck."

From the foregoing testimony it could be reasonably inferred, either that the servants in charge of the train saw the dog, or that the failure to see him was due to a reckless disregard of duty; which is equivalent to wantonness and wilfulness. Pickett v. Ry., 69 S.C. 445.

As there was some testimony tending to sustain the finding of fact by his Honor, the presiding Judge, and as this is a law case, such finding is not reviewable by this Court.

Conceding that the dog was a trespasser, the defendant did not have the right to inflict upon him a wilful or wanton injury.

For these reasons I dissent.