Smoak v. Seaboard Coast Line R. Co.

• Decision Date: 14 December 1972
• Docket Number: No. 19540,19540
• Citation: 259 S.C. 632,193 S.E.2d 594
• Court: South Carolina Supreme Court
• Parties: J. C. SMOAK and Dalton L. Truluck, as Administrators of the Estate of Arnold Ray Smoak, Respondents, v. SEABOARD COAST LINE RAILROAD COMPANY, Appellant.

Page 594

193 S.E.2d 594

259 S.C. 632

J. C. SMOAK and Dalton L. Truluck, as Administrators of the Estate of Arnold Ray Smoak, Respondents, v. SEABOARD COAST LINE RAILROAD COMPANY, Appellant.

No. 19540.

Supreme Court of South Carolina.

Dec. 14, 1972.

Robert M. Erwin, Jr., of Burns, McDonald, Bradford, Erwin & Few, Greenwood, for appellant.

Murdaugh, Eltzroth & Peters, Hampton, for respondents.

LITTLEJOHN, Justice:

This common law action for wrongful death arises as a result of a railroad grade crossing collision involving a pickup truck and a freight train. The plaintiffs' intestate was riding as a passenger in the cab of the truck when the collision occurred. We are called upon to determine if the intestate was guilty, as a matter of law, of contributory negligence, gross negligence, willfulness and wantonness, so as to bar recovery. Incidental to the verdict for $75,000 actual damages and $25,000 punitive damages, the issue of excessive damages is raised. We must also examine a witness's unresponsive answers to determine if a mistrial should have been granted.

At appropriate stages of the trial, motions for nonsuit, for directed verdict, and for judgment Non obstante veredicto were made and denied. All the motions were grounded on the proposition that the intestate was, as a matter of law, guilty of contributory negligence, gross negligence, willfulness and wantonness. The first question we decide is whether the intestate was guilty of such as a matter of law.

A ruling upon this question requires us to review the evidence for the purposes of determining whether it is susceptible of more than one reasonable inference. For the purpose of our review, the evidence must be considered in the light most favorable to the plaintiffs. Gillespie v. Ford et al., 225 S.C. 104, 81 S.E.2d 44 (1954). The intestate was a passenger in a pickup truck, owned and operated by his brother, Norris Smoak, when it collided with a freight train, owned and operated by the defendant. Another brother, James Smoak, and Henry McMillan were also passengers. James Smoak was also killed in the collision. They were returning to their homes in Colleton County from a construction job in Beaufort County, by way of a shortcut suggested by James Smoak. Both the driver and the intestate were unfamiliar with the road which they were traveling. The collision occurred late in the afternoon, when it was daylight and visibility was good. The terrain was level; it was in a rural area; and the road was straight. The train was approaching the crossing from the pickup driver's right. There is evidence that the driver of the pickup slammed on his brakes and skidded 177 feet before reaching the point of impact. Defense witness Rolf Roley, a professional engineer and reconstruction expert, testified that in his opinion the pickup was traveling approximately 60 miles per hour prior to applying brakes, and that the train was traveling at approximately 20 miles per hour at the instant of impact. He testified that in his opinion the driver of the pickup was approximately 312 feet from the corssing at the time he perceived the presence of an oncoming train. He estimated that the train would have been 165 feet from the crossing when the pickup was 310 feet away. There is testimony that the pickup driver's visibility was greatly hampered by undergrowth around the intersection. There is testimony that the train gave no signal when approaching the intersection. Photographs show a highway railroad sign approximately 500 feet from the crossing and a railroad cross-buck sign at the crossing. The driver testified that he was traveling about 55 miles per hour and slowed down when he saw the highway railroad sign.

On this appeal, there is no contention that the evidence does not support the inference that the defendant railroad company failed to use due care. The sole contention as relates to the issue of liability, is that recovery is barred because the intestate did not use due care for his own safety. Inasmuch as this action is one at common law and not based on any statutory law, the delicts of the driver cannot be imputed to the plaintiffs' intestate. On the issue of contributory negligence, gross negligence, willfulness and wantonness, the burden of proof rests upon the defendant, which alleged it. It is therefore encumbent upon the defendant, if it would prevail as a matter of law, to prove to the exclusion of all other reasonable inferences that the intestate did do some act, or failed to take some action just before the collision, amounting to negligence, gross negligence, willfulness or wantonness, and that such contributed to the collision and the ensuing death as a proximate cause thereof. The lower court in effect held that the evidence was susceptible of more than one reasonable inference and that a jury issue was presented. We agree.

Four persons were riding in the pickup. Two of them were killed. It thus seems that the defendant must basically rely upon the testimony of Norris Smoak, the driver, and Henry McMillan, another passenger, to establish what the intestate did or did not do prior to the collision. The defendant may, of course, rely upon circumstantial evidence, which in this case is of little assistance.

The law imposes certain duties on a driver and imposes certain duties upon a passenger. Those duties are greatly different. Each is expected to conduct himself as a reasonably prudent person would conduct himself under the circumstances. It cannot be said that a passenger is always negligent if he reads a magazine or stares at farm operations, or turns around when seated in the front seat to converse with passengers in the rear. Prudent passengers often do these things. On the other hand, if a driver turns around to converse with passengers in the rear, or reads a magazine, or stares at farm operations, it can be safely said that he would normally be conducting himself as a prudent driver should not. On the other hand, circumtances may arise which require that a prudent passenger affix his attention to the road just as a driver should. We think that the defendant has failed to fulfill the affirmative burden of proving, as a matter of law, that the intestate had a duty to be on the alert for a train. There is evidence which, if believed, proves that the train whistle was not blowing and the bell was not ringing. There is evidence that...