Goodwin v. Atlantic Coast Line R. Co.

Citation64 S.E. 242,82 S.C. 321
PartiesGOODWIN v. ATLANTIC COAST LINE R. CO. et al.
Decision Date09 April 1909
CourtUnited States State Supreme Court of South Carolina

Appeal from Common Pleas Circuit Court of Marlboro County; R. C Watts, Judge.

Action by R. C. Goodwin against the Atlantic Coast Line Railroad Company and another. From a judgment for plaintiff defendants appeal. Affirmed.

Willcox & Willcox, Livingston & Muller, and Townsend & Rogers, for appellants.

Newton & Owens, for respondent.

JONES J.

The plaintiff recovered judgment against the defendant railroad company for $787.50 as damages for personal injuries loss of three fingers of the left hand, and accompanying suffering caused by collision with defendant's engine and car operating within the yard of the Marlboro Cotton Mill near Bennettsville, S. C., on October 20, 1906.

The main question presented by the exceptions to said judgment is whether there was error in the court's refusal of the motion for nonsuit and the motion to direct a verdict for defendant. Appellant contends that the only inference of which the testimony is susceptible is that plaintiff was a trespasser upon defendant's track at the time of the collision, and that the injury was not wantonly inflicted; that, if the injury was a result of defendant's negligence, the testimony shows conclusively that plaintiff approximately contributed thereto by standing upon the track in a position of obvious danger. There was testimony tending to show that plaintiff had for years been engaged in hauling wood and other material for the Marlboro Cotton Mill with his own team, and on this occasion had entered at the lower side of the millyard, which was inclosed, through a gate for wagons on a road leading through the inclosure partly along the wood piled next to the track and across the track at the upper side and extending out at another gate for wagons, and was going to the superintendent's office to procure payment for some service performed for the mill company; that he took the most direct route to the superintendent's office, which led across the spur track through an opening in the wood piled alongside the spur track within the inclosure, being used by the defendant company for the purpose of carrying in wood and coal for the mill company and in hauling out cars containing the products of the mill; that persons employed about the mill and yard were accustomed to cross said track and walk along it whenever it suited their convenience without objection by the railroad company, and with the knowledge and acquiescence of the mill company, whose orders only excluded children and loafers; that, on reaching the track at the opening in the woodpile alongside, plaintiff was accosted by a man loading his wagon with wood at or near the opening, and stopped on the edge of the track and engaged conversation with the man, and standing with his side or back to the direction from which a train might approach; that while in this position neither he nor the person with whom he was conversing heard the approach of the cars nor any signals, and that while he saw Mr. Thrower, the engineer of the mill company, approaching from nearly the opposite direction he did not hear his calls of warning on account of the wind blowing in a contrary direction; that there was no ringing of bell or blowing of whistle or any other signal of warning given by the defendants of the train's approach and no lookout on the rear of the backing train, and that the train was backing "at a pretty rapid rate"; that plaintiff became aware of the approach of the backing train when it was within a few feet of him, raised his hand against the car, was thrown down, and, while endeavoring to get out of the way over the wood which had been placed along the track, was thrown back upon the track by the falling wood, and his left hand run over by the wheels of the car, the car being stopped so quickly that only two trucks had passed him.

There was testimony that the inclosure was controlled by the Marlboro Cotton Mill; that it had a gate for the entrance of the train cars which was closed at night; that the spur was about 325 feet in length from gate to coal shute at the end where the coal was dumped; and that it was the custom for the Marlboro Cotton Mill to unload the cars of wood and pile the wood on either side of the track. The defendant's train was a freight train operating between Florence, S. C., and Fayetteville, N. C., passing by the cotton mill one day going and the next day returning, and it was of frequent occurrence for the train to stop at the mill and use the siding in carrying in material or carrying out the products of the mill. On this occasion, about schedule time, the train arrived, and plaintiff was aware of its approach on the main line, but he testified that he was not aware that the engine had moved onto the siding, although he was aware that there was a box car on the siding within the inclosure at the platform of the packing room, but whether the car was empty or loaded with mill products for transportation out was a matter as to which there was some conflict in the testimony. On the part of defendant there was testimony that the car was loaded for transportation out, that the engine switched from the main line, entered the inclosure, attached to the loaded car, and pushed on slowly at the rate of three miles per hour upgrade towards the coal shute to take out also an empty car there; that the bell was ringing all the while; that the engineer did not expect that any one would be on the track on this occasion, and did not discover the presence of any one on the track until he heard some one holler, and that he immediately put on brakes and stopped the train. The brakeman, however, testified that, after coupling with the car at the platform, he signed the engineer back to the coal shute for the empty and climbed on top of the car to give signals, and that as he climbed up, he saw a man standing on the edge of the railroad with his side towards him, in a position of danger talking to another man, that he called out to him, "Look out, we are coming back there after some cars!" that he did not see him any more until he heard him holler; that he then gave stop signal and the train stopped when only two trucks had passed him. It appears that the distance from the point where the brakeman was when he saw plaintiff to the place of collision was about 125 feet. We are of the opinion that it cannot be said that the testimony conclusively shows that plaintiff was a bald trespasser upon the track of the railroad company, as in Hale v. Railroad Co., 34 S.C. 292, 13 S.E. 537, where the party injured was on the side track in the depot yard of the railroad company and within its exclusive control, and as in Smalley v. Railway Co., 57 S.C. 243, 35 S.E. 489, where the injured party was on a trestle on the main line of the railroad company. Here the track was within the private inclosure of the Marlboro Cotton Mill and subject to its general control, and its use by the railroad company was not exclusive. The plaintiff was in the yard on business with the mill company and under circumstances warranting him in supposing he could cross the track as others were accustomed to do with the knowledge and acquiescence of the owner and controller of the inclosure.

A possible theory of the case, then, is that plaintiff was crossing the track as a licensee and not as a trespasser, in which event the railroad company was bound to observe ordinary care not to injure him. Jones v. Railroad, 61 S.C. 559, 39 S.E. 758. The mere fact that plaintiff stopped upon the track for a few moments under circumstances tending to show constant use of the track by persons having business in the yard would not of itself be conclusive that plaintiff was a trespasser in being where he was. The testimony tended to show, not merely a case of inadvertent negligence, but a case of advertent negligence, a reckless and wanton disregard of plaintiff's safety by running against him in the yard of his employer without any attempt to stop when it could easily have been done in time, and without any warning after knowledge of...

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