Norris v. Greenville, S. & A. Ry. Co.

• Decision Date: 13 January 1919
• Docket Number: 10114.
• Parties: NORRIS v. GREENVILLE, S. & A. RY. CO. (TWO CASES).
• Court: South Carolina Supreme Court

97 S.E. 848

111 S.C. 322

NORRIS v. GREENVILLE, S. & A. RY. CO. (TWO CASES).

No. 10114.

Supreme Court of South Carolina

January 13, 1919

Appeal from Common Pleas Circuit Court of Greenwood County; S.W. G Shipp, Judge.

Action by J. M. Norris, administrator of the estate of Harvey Norris, deceased, against the Greenville, Spartanburg & Anderson Railway Company, and by O. D. Norris against the same defendant. The two actions were tried together by consent of counsel. Verdict for $12,000 in the first case, and for $350 in the second, and the Railway Company appeals. Affirmed.

The allegations of the first-mentioned complaint which are material to the issues involved are as follows:

"(3) That the defendant, Greenville, Spartanburg & Anderson Railway Company, is a railroad corporation created by and under the laws of the state of South Carolina, and owns, operates, and controls a line of railway from Greenwood, in the county and state aforesaid to Greenville in the said state and elsewhere, and is a common carrier of passengers and freight for hire.

(4) That in the construction of the said railroad it became necessary to cross one of the principal highways in Greenwood county, and at the point where the said railroad would intersect the highway the defendant dug a deep cut across the same in order to avoid the cost of bridging the said cut diverted the said highway to the foot of the same, and instead of the said highway running directly across the said cut, it now runs up close to the said cut and then makes a sharp turn, and proceeds along the said cut and down the same until it reached the foot of the said cut, and there it makes a sharp turn and crosses the railway track, and after crossing the same again turns back and follows the said cut up into the original highway, and the crossing so made by the defendant and maintained by it is extremely dangerous and hazardous by the manner in which the said defendant company diverted and changed the said highway.

(5) That heretofore, to wit, on the 16th day of July, 1917, Harvey Norris was passing along the said highway driving an automobile, and was in the act of crossing the said railroad and upon the said crossing, when a passenger train of the said defendant, running at a high and reckless rate of speed, collided with the said automobile in which the said Harvey Norris was riding, and threw the said Harvey Norris therefrom, causing such serious injury to his head and body, that he then and there died.

(6) That the direct and proximate cause of the injury to the said Harvey Norris was the negligent, careless, reckless, and willful conduct of the defendant, in the following particulars, to wit:

(a) In diverting the said highway to the foot of the said cut, instead of bridging the said cut, thereby making a very dangerous and hazardous crossing, and rendering ineffective the ordinary means of warning for approaching trains.

(b) In maintaining a crossing for the said highway in a very dangerous and hazardous place without providing any safeguard for the protection of the public commensurate with the dangers of the situation.

(c) In running upon the said crossing, which it knew was so located as to be extremely dangerous to persons obliged to use the same, at a high and reckless rate of speed.

(d) In failing to ring the bell or blow the whistle, as required by the statute laws of this state, on approaching crossings.

(e) In failing to give such warning of the approaching trains as is reasonably sufficient, in the situation, to apprise a person using the said highway of the approach of its train."

The defendant denied the wrongful acts alleged in the complaint, and set up the following as a defense:

"That while the deceased was driving along the highway in the direction where it crosses another highway, to wit, the railway of the defendant herein, and where there was a sharp curve in the highway as it approached said railway, and at the point where the conformation by reason of the cut through which the railway passes would require the exercise of care in order to see and avoid approaching cars upon the railway, the deceased, in violation of the statutes of this state, and in disregard of his own safety, and without due regard for the safety of persons traveling in defendant's car, did carelessly, recklessly, and wantonly drive the automobile referred to in the complaint at a high rate of speed greatly in excess of 15 miles an hour, whereas under the law he should not have exceeded 6 miles per hour, around the said sharp curve and over and upon the railway track of the defendant, causing it to collide with the car belonging to the defendant which was being operated on defendant's track as a common carrier of passengers in pursuance of the public duty of the defendant."

The jury rendered a verdict in the first-mentioned case for $12,000, and in the second for $350.

Typewritten requests were interchanged between opposing counsel. Among the typewritten requests to charge submitted by the plaintiff was plaintiff's third request, which reads as follows:

"If the plaintiff's intestate, Harvey Norris, was killed as a result of the willful misconduct of the defendant, its agents and servants, the plaintiff would be entitled to recover for his death, even though the said Harvey Norris was also guilty of negligence, which contributed to his death as a proximate cause, for contributory negligence is no defense to willfulness."

The defendant thereupon submitted the following written request, which his honor failed to charge, for the reasons stated in the order overruling motions for new trials hereafter set forth:

"Qualify plaintiff's third request as follows: 'But if the deceased recklessly and wantonly failed to use his senses to discover the approach of the train, and to take such steps as were reasonably necessary for his own safety, and if such recklessness and wantonness was the proximate cause of his own death, then the plaintiff cannot recover, even though the defendant's conduct was willful or wanton.' "

The defendant's attorneys made a motion for a new trial, the grounds of which are stated in the following order of his honor the presiding judge:

"This is a motion for a new trial by the defendant, the plaintiff having been given a verdict by the jury for $12,000:

(1) Because the presiding judge refused defendant's request to charge modifying plaintiff's third request.

(2) Because the judge should have directed a verdict for defendant as to punitive damages.

As to the first ground, it will be sufficient to state that the defendant was not entitled to the charge referred to because same was not pleaded. It is true defendant pleaded contributory negligence, but not contributory willfulness. It is also true that def

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