Arnold v. Charleston & W. C. R. Co.

• Decision Date: 28 September 1948
• Docket Number: 16132.
• Citation: 49 S.E.2d 725,213 S.C. 413
• Parties: ARNOLD v. CHARLESTON & WESTERN CAROLINA R. CO.
• Court: South Carolina Supreme Court

49 S.E.2d 725

213 S.C. 413

ARNOLD v. CHARLESTON & WESTERN CAROLINA R. CO.

No. 16132.

Supreme Court of South Carolina

September 28, 1948

Babb & Babb and Blackwell, Sullivan &amp Wilson, all of Laurens, and A. C. Todd, of Greenwood, for appellant.

O L. Long, of Laurens, and Carlisle, Brown & Carlisle, of Spartanburg, for respondent.

TAYLOR Justice.

This action was brought by one J. Ralph Arnold as Ancillary Administrator of the estate of Hayne D. McKinney, deceased against the Charleston & Western Carolina Railway Company for damages alleged to have been sustained by reason of the death of Hayne D. McKinney, which arose out of a collision of a motor truck driven by plaintiff's intestate and one of defendant's trains at a crossing in Laurens County, South Carolina.

The defendant-appellant made timely motions for a nonsuit and directed verdict, both of which were refused. The Jury found for the plaintiff in the sum of fifteen thousand dollars ($15,000), and the defendant now appeals to this Court upon exceptions which raise, along with others, the question of whether or not the Trial Court erred in refusing appellant's motion for a directed verdict, which of course necessitates a review of the evidence adduced.

The respondents offered four witnesses, Mrs. Anna McKinney, widow of the deceased driver of the truck, Mr. J. O Denny, a state constable, Mr. J. Ralph Arnold, who brings this action as Ancillary Administrator, and Mrs. Estelle Hendricks, none of whom witnessed the collision. A close study of the testimony shows that Mrs. Hendricks testified that she resided approximately five or six hundred (500 or 600) yards from the scene and on the afternoon of March 30, 1946, was in the yard washing her car, that it had been raining but at that time the weather was clear. Upon hearing an unusual noise in the direction of the crossing, she turned around and perceived quite a long double-header freight train coming down the track in her direction from Laurens towards Greenwood, 'it was traveling pretty swift and was pushing a truck in front of it,' that at the time of the collision she was facing in the opposite direction and did not see the actual collision. The train pushed the truck almost to her house before she first noticed the bell ringing. To the question, 'Were you where you could have heard the whistle blow had it blown before the collision?', she answered, 'Oh, yes, I could have heard it all right.'

Mr. J. Ralph Arnold, the plaintiff in this case, testified that he is acting as such by reason of his wife's being related to one of the men who were killed in the collision, that he later inspected the scene, and traveling the direction in which Mr. McKinney was traveling, one would travel an upgrade to the crossing, that you can't see the railroad tracks until you get within fifty (50) feet of them, that there is a highway sign, but had the deceased been traveling right behind another car (There is no testimony that he was.), he couldn't have seen it because it was too low, that there were railroad crossing signs there on the right, that one of the regular crossarm signs had one arm of the sign broken off and the lettering was dingy and hard to read, that the railroad track as it approaches Highway 221 from the Laurens side is in a sink with the railroad curving to the left at the highest point where it crosses Highway 221, that the tracks were obscured but he did not know whether or not the train would be. Upon cross examination this witness testified as follows:

'Q. Were you ever there when there was a train coming from toward Laurens going south? A. No, sir.

'Q. You don't know whether one could see a train approaching from the direction of Laurens, even if they could not see the track as you claim? A. No, sir.

'Q. You don't know whether he could see a train coming up the track as high above the track as the top of the train is? A. No, sir.

'Q. You don't know whether he could see it or not? A. No, sir.

'Q. Mr. Arnold, isn't there an open field up the railroad, up to the right up there? A. I don't remember that, sir.

'Q. You don't remember there being an open field there? A. No, sir.

'Mr. Long: Where?

'Mr. Babb: From the right of the Highway as you approach that railroad crossing toward Laurens.'

By Mr. Babb:

'Q. Was it heavily wooded or just a hedge? A. It wasn't so heavily wooded, but I would say it was enough to obstruct the view from the railroad.

'Q. Obstruct the view of the track? A. Yes, sir.

'Q. You don't know whether it would obstruct the view of the train, because you were never there when a train came along? A. (No response.)'

Witness J. O. Denny testified that he is a state constable and resides at Cross Hill. On March 30, 1946, as he approached this crossing, he observed that Highway 221 was blocked by a freight train. Upon finding that there had been a collision between this train and a truck, he went to the front of the engine and found the truck lodged thereon, that it was down the tracks towards Greenwood, but not quite as far as Mrs. Hendrick's house. A portion of his testimony is reproduced below:

'Q. What was the condition of the weather, and tell us what of the view you have of the track off to the right as you come in from Cross Hill, Mr. Denny? A. It had been raining but it wasn't raining at that time; as you come up from Cross Hill you are traveling over Highway No. 39, and '39' interests or comes into Highway 221 just below this crossing, and as you come in on No. 39 into this other road No. 221, you find that is a different kind of road, the one from Cross Hill is black-top and No. 221 is cement pavement, and when you come into this road it is up from there, after you come into Highway 221, from right where you come into it to go on to this railroad crossing, why you are approaching it going up-grade, it is a pretty nice grade there and this railroad is right just about at the top of that grade.

'Q. Now this Highway No. 221 that is a U. S. Highway is it not, as well as a State Highway, that paved road, I mean? A. I think it is, Mr. Babb, I would not be positive but I think it is a U. S. Highway.

'Q. It is a U. S. Highway as well as a State Highway? A. Yes, sir.

'Q. Now, Mr. Denny, below the intersection of the Highway with the Cross Hill Road towards Greenwood, are there any 'Stop Signs' on that paved highway? A. Yes, sir; there are 'Stop Signs' there, I think the stop signs are where the road from Cross Hill comes into the Greenwood Highway.

'Q. Is there a stop sign on the Cross Hill Highway? A. Yes, sir; there is a sign on that highway.

'Q. Now, towards Greenwood, were there signs or not on that road from the intersection, is there a sign for a curve there? A. I believe there is a sign indicating a curve there.

'Q. You think there is a curve sign there? A. Yes, sir; I think so.

'Q. And an intersection sign also? A. Yes, sir; and there is a crossing sign of some kind there, one of these 'V' shaped signs.

'Q. Between the intersection of the Cross Hill Road and the Greenwood Road and the railroad crossing, between those two points what signs are on the right going toward the crossing? A. I think there is a railroad sign, that yellow and black sign.

'Q. A yellow and black sign with cross marks on it? A. Yes, sir.

'Q. About how far is that sign from the railroad crossing, Mr. Denny? A. I wouldn't say the distance, Mr. Babb, but it is some little distance from the crossing you see as you approach the crossing up there on your right.

'Q. It there ample space between that sign and the railroad tracks for a car to stop before crossing the tracks? A. I would think so.

'Q. Going at an ordinary rate of speed? A. I would think so.

'Q. Have you ever stopped between that sign and the railroad, Mr. Denny? A. I generally stop there.

'Q. You generally stop there? A. Yes, sir.

'Q. So there is room between that sign and the railroad for a man to stop his car? A. Yes, sir.

'Q. Do you know of anything other that what you just spoke of there that would interfere with the vision of a person traveling on that highway to know that there was a railroad crossing there? A. That is a matter of opinion, Mr. Babb, I don't know whether a man would notice it or not.

'Q. You don't know whether he would see it or not? A. No, sir; I don't know what he would do.

'Q. You don't think if he saw that sign back there he would notice the railroad crossing up ahead? A. That's right; he might not see the sign down there.

'Q. He might not see it? A. That's right; he might not notice it.

'Q. And he might not notice a train coming down the track as you do? A. Well, a man who is more familiar with the road and the crossings would be more careful than a man who is not familiar with it.

'Q. I am not asking you that, I asked you if he was observing the ordinary rules of driving if he could not see the train? A. That's right; if he was on his guard.

'Q. And as he approached the crossing there is nothing to prevent his seeing that railroad sign back there and the cross-arm sign near the crossing, is there? A. No, sir.

'Q. And if he observed those signs, is there anything to keep a man from seeing an approaching train before he reached the crossing? A. I would not think so.

'Q. Not what you think, is there or not anything to keep him from seeing an approaching train, if he had observed the two warning signs before he reached the crossing? A. No, sir; not if he saw those signs.'

'Mr. Babb: That is all.'

The other witness presented by the plaintiff was Mrs. Anna McKinney, the widow of the deceased truck driver, who stated that her husband had been to Florida and was presumably on his way home to Minneapolis, North Carolina.

The appellant offered as evidence the testimony of a number of...