in carrying out the public purpose. The theater was not built, nor has it been used, for the purposes of raising revenue, but to fill a public need. The leasing of it was merely an expedient way of giving effect to the purpose, and the revenue merely an incident of it.

The taxes sued for accrued from 1906 to 1914, inclusive. The total gross income from the theater, for the 10 years from 1904 to 1914, inclusive, was $20,433, while the expenditure for the upkeep of the building during the same period was $41,263, of which amount at least $2,500 per annum was spent for insurance and repairs on the theater itself; hence during that period the theater was a loss, instead of being a source of revenue. Certainly, therefore, it cannot be said that it was used for revenue. But the amount of revenue, whether more or less than the cost of maintenance, would not alter the nature or purpose of the use by which the right of exemption is to be tested. Here the use was exclusively public, and the purpose in view was not revenue. Therefore the property is exempt.

Judgment reversed.

MR. CHIEF JUSTICE GARY and MESSRS. JUSTICES WATTS and GAGE concur.

MR. JUSTICE FRASER. I dissent. The language of the Constitution is "used exclusively for public use.' If the language had been "used exclusively for private use," the construction placed upon it by the majority of this Court would be proper. Parks and playgrounds are for public use, but the use is free to all. The $41,000 expended would have been expended if the whole building had been used exclusively for the public use, and the $20,000 is profit. That is, it is a saving of $20,000, and $20,000 saved is $20,000 made. If these figures were reversed, and the receipts were $40,000 and expenditures $20,000, it would make no difference, for the word used is "revenue" and not "profit." The doctrine, it seems to me, is dangerous, and

8 S. C. 115.

Dissenting Opinion.

[115 S. C.-108] there is no telling where it will lead. The city may establish a public bathing pool. May it charge a fee to all bathers and still be exempt? Decidedly the most popular form of entertainment is found in the moving picture show and the baseball park. If this be a public use, then the city can condemn land to provide a baseball park and a building used exclusively for games of baseball and moving picture shows. The State may authorize quasi public corporations to condemn land for public use. Can a private corporation get a charter that will allow it to condemn land for a baseball park or a moving picture show? I know "public use" is given a broad interpretation; but I do not think it is as broad as all this. What about condemning a city lot for a grocery store? It is very necessary for people to eat. All business has a public use.

Liberal constructions are not allowed by our Constitution. It seems to me that the city hall is not used exclusively for public use, and the city is not exempt. Article X, section 1, provides for the taxation of all property, except such as may be exempt. The exemption is found in section. 4 of that article. The exemption is of municipal property used exclusively for public purposes, and not for revenue. The occasional use of the city hall for public purposes is immaterial. The Constitution says "exclusively," and it seems to me that we must read that word out of the Constitution in order to exempt the city from this tax. If the purpose of the members of the Constitutional Convention had been to tax opera houses from which the cities derived a revenue, they could not have made it much plainer. More specific language is not appropriate to a Constitution. I know of no other property to which it applies or can apply.

I agree with the appellant that the cases cited from this State do not apply to the question now before this Court. For instance, the case of City of Columbia v. Tindal, 43 S. C. 547, 22 S. E. 341, refers to the remedy and not the right.

April Term, 1920.

10508

PEEPLES v. SEABOARD AIR LINE RAILWAY.

1. JUDGMENT

(104 S. E. 541.)

-JUDGMENT DENYING RECOVERY FOR DEATH NOT RES JUDICATA IN ACTION UNDER SURVIVAL STATUTE. — Judgment for defendant in an action by the administrator of one killed on a railroad's track, brought in behalf of the beneficiaries under Lord Campbell's Act, is not res judicata in a second action by the administrator under the survival statute for the injury to decedent, after which he lived some two hours.

2. DEATH EVIDENCE OF SUFFERING SUFFICIENT TO TAKE QUESTION OF RECOVERY UNDER SURVIVAL ACT TO THE JURY.-In an action under the survival act for the suffering of one fatally injured on a railroad track, evidence that deceased suffered after his injury prior to his death held sufficient to take the question to the jury.

3. DEATH EVIDENCE OF NEGLIGENCE AND WILFULNESS SUFFICIENT FOR JURY.—In an action under the survival act for suffering following fatal injury on a railroad track, evidence of defendant railroad's negligence and wilfulness in operating train without signal and warning held sufficient to justify submission of those questions to the jury as grounds for recovery of actual and punitive damages.

4. RAILROADS-CONTRIBUTORY NEGLIGENCE OF PEDESTRIAN ENTITLED TO RELY ON STATUTORY WARNING FROM TRAIN HELD QUESTION FOR JURY. -In an action involving the issue of contributory negligence of a pedestrian fatally injured at an obstructed crossing, whether the statutory warning from the construction train which struck decedent was given held a question for the jury.

5. RAILROADS-FAILURE TO GIVE SIGNALS PRESUMED CAUSE OF INJURY.— Where the statutory signals are not given by a train, and one is struck on the railroad's track, there is a presumption that the failure to give the signals was the proximate cause of the injury.

Before BOWMAN, J., Hampton, October, 1919. Affirmed.

Action by W. E. and B. J. Peeples, as Administrators of the Estate of J. W. Peeples, Deceased, against Seaboard Air Line Railway. From judgment for plaintiffs, the defendant appeals.

Messrs. J. W. Manuel and Harley & Blatt, for appellant, cite: Case was res adjudicata: 97 S. C. 27. No evidence of pain and suffering by deceased, and verdict should have been directed: 108 S. C. 201; 237 U. S. 647; 128 Tenn. 363;

173 Mich. 329; 125 Mass. 90; 108 Ark. 396; 134 Mass. 499; 68 Ark. 1; 145 U. S. 335; 145 Mass. 281. Pain and suffering substantially contemporaneous with death and inseparable as matter of law from it: 9 Cush. 109. Id. 478; 125 Mass. 90; Id. 93. Only inference from testimony is that deceased failed to observe slightest care for his own safety: 94 S. C. 143; 5 S. C. 221; 63 S. C. 271; 72 S. C. 389; 78 S. C. 379. Testimony of uninterested witness in contradiction of positive testimony of train crew as to signals, etc., insufficient to make substantial conflict: 33 Cyc. 891; 149 Fed. 79. Burden on person crossing track who is hit by train to show he was not negligent: 65 Am. St. Rep. 377. Obstructions near track put additional burden on pedestrian to observe: 55 Am. St. Rep. 287. Track of itself a warning: 8 Am. St. Rep. 804. Duty to look and listen: 49 Am. St. Rep. 323; 10 Am. St. Rep. 616; 8 Am. St. Rep. 814; 18 Am. St. Rep. 407; 49 Am. St. Rep. 323; 55 Am. St. Rep. 287. Duty of carrier and of travelers at a crossing: 52 S. C. 323; 49 Am. St. Rep. 371; 97 Am. St. Rep. 844; 33 Cyc. 943; 30 Pac. 462; 75 S. W. 930; 33 Cyc. 952; 57 S. C. 205; 33 Cyc. 978, 981-2, 985, 988; 27 Barb. 533; 80 N. W. 28; 33 Cyc. 1000-1; 60 N. J. L. 278; 33 Cyc. 1036-7. No wilfulness on which to base verdict for punitive damages: 62 S. C. 269; 15 S. C. 412; 69 S. C. 444; 2 Suth. Damages 1093; 12 A. & E. Enc. Law (2d Ed.) 24.

Messrs. George Warren and Holman & Boulware, for respondents, cite: Judgment in an action under Lord Campbell's Act not res adjudicata of an statute: 97 S. C. 27; 81 S. E. 189. ments cumulative to any existing

action under the survival Statutory signal requirelaw: 1 Civ. Code 1912,

sec. 3314; 25 S. C. 53; 47 S. C. 28; 61 S. C. 404; 74 S. C.

377. Presumption of negligence from failure to give signal at a crossing: 84 S. C. 125; 65 S. E. 1031; 59 S. C. 99; 63 S. C. 271; 63 S. C. 532; 78 S. C. 374; 84 S. C. 125; 63 S. C. 370; 83 S. C. 325.

October 11, 1920.

The opinion of the Court was delivered by MR. JUSTICE FRASER.

Mr. J. W. Peeples, going along the principal street of Estill, a town in this State, found the street obstructed by a train of cars on the defendant road. There were three tracks across the street, and a freight train was across the middle track. There was a construction train on the first track. The freight train was moving off, and Mr. Peeples crossed the first track and waited for the freight train to clear the street. For some unknown reason, Mr. Peeples walked backwards from the moving freight train. In the meantime the construction train on track No. 1 moved slowly forward, and Mr. Peeples moved too close to track No. 1, and the construction train hit him, threw him under the train, and injured him to such an extent that he died in about two hours. The plaintiff administered on his estate and brought an action in behalf of the beneficiaries under Lord Campbell's Act, and the suit resulted in favor of the defendant company. The administrator then brought this action under the survival statute for the injury to Mr. Peeples, asking for both actual and punitive damages. The defendant, in its answer, denied negligence and wilfulness, and set up the former judgment as res adjudicata, and pleaded contributory negligence. The defendant moved for a direction of verdict on negligence and wilfulness. This was refused, and a verdict was rendered in favor of the plaintiff for $10,000. From the judgment entered on this verdict, the defendant appealed.

1

1. The first question is: Is the judgment in the first action res adjudicata?