Pinson v. Southern Ry., Carolina Division

• Decision Date: 29 March 1910
• Citation: 67 S.E. 464,85 S.C. 355
• Parties: PINSON v. SOUTHERN RY., CAROLINA DIVISION.
• Court: South Carolina Supreme Court

67 S.E. 464

85 S.C. 355

PINSON v. SOUTHERN RY., CAROLINA DIVISION.

Supreme Court of South Carolina

March 29, 1910

Appeal from Common Pleas Circuit Court of Cherokee County; R. W Memminger, Judge.

Action by J. M. Pinson, administrator of Clarence Pinson, against the Southern Railway, Carolina Division. From a judgment of nonsuit, plaintiff appeals. Affirmed.

N. W Hardin, for appellant. Sanders & De Pass, for respondent.

HYDRICK J.

The testimony for plaintiff was that, on December 25, 1905, his intestate, Clarence Pinson, boarded defendant's train at Shelby, N. C., and paid his fare to Blacksburg, S.C. He had been drinking, but was not drunk, and seemed to know his business pretty well. He got aboard without assistance, took a seat in the car, and, when the conductor came through collecting fares, paid his own fare and that of a fellow passenger. He was not disorderly, but sat quietly in his seat, and behaved himself so that the fact that he had been drinking was not obvious, though, by looking at him and talking with him one who was acquainted with him could see that he had been drinking. The conductor had no conversation with him. When the train arrived at Blacksburg, about 8 o'clock p. m., it stopped about a quarter of a mile from the station to switch from the main line of the defendant's road to the main line of the Southern Railway Company, and run into the station of the latter company which was operating defendant's road under lease. The roads cross each other nearly at right-angles. When the train stopped, Pinson got off, and started down the main line of defendant's road, along a path used by the people of the town with the knowledge and acquiescence of defendant. One of defendant's employés, who was not one of the train crew, had gone to meet the train, and was standing near the switch. After the train passed into the switch, he saw Pinson coming towards him "blundering and stumbling" along the track. He called to him several times and asked who he was, but Pinson did not answer. It does not appear that any of the train crew saw Pinson get off, or knew anything of it. At the time he got off there was a freight train, with a passenger coach attached, standing on the main line of defendant's road east of the switch, and headed east. When the passenger train took the switch, this freight train started backward to get west of the switch, so that, when the passenger train had gone into the station and discharged and received its passengers, it could come back on defendant's main line, and proceed east. Between the points where Pinson got off and where the freight train was standing there is a very sharp curve in defendant's main line, around the foot of a hill, which shuts off the view of the track for any considerable distance. It was on this curve that the backing freight train struck and killed Pinson. On the back end of the passenger coach, which was attached at the end of the freight train, were two red light markers, one on each side, a red light lantern sitting in the middle of the platform, and a flagman with a white light lantern in his hand, keeping a lookout as the train ran backwards. Before starting the train backward the fireman rang the bell, and the engineer blew the whistle three times. As the train was running backward, at the rate of from 6 to 10 miles an hour the flagman discovered Pinson, about 30 feet from him, coming along in the middle of the track, meeting the backing train. He had his hands in his pockets, and wore a broad-brimmed hat, which was pulled down over his face, and he seemed to be looking down. As he appeared not to see or hear the train, or to be making any effort to get off the track, the flagman called to him, "Look out!" but Pinson paid no attention. He called again, several times, "Look out! Look out!" but, seeing that Pinson did not heed his warning, he attempted to signal the engineer with his lantern to stop the train; but, on account of the curve and the obstruction of the hill, the engineer could not see the signals. He then ran into the car to put on the automatic air brakes; but, before he got inside the door the train had struck Pinson. He ran on through the passenger coach to the freight car next to it, but found that there was between that car and the engine a dummy car; that is, one which is not equipped with air brakes. Failing to put on the brakes, he jumped off the train and ran out to where his signals could be seen, and stopped the train, but not...