Atlantic Coast Line R. Co. v. McLeod

• Decision Date: 12 January 1926
• Docket Number: No. 2387.,2387.
• Citation: Atlantic Coast Line R. Co. v. McLeod, 11 F.2d 22 (4th Cir. 1926)
• Parties: ATLANTIC COAST LINE R. CO. v. McLEOD.
• Court: U.S. Court of Appeals — Fourth Circuit

11 F.2d 22 (1926)

ATLANTIC COAST LINE R. CO. v. McLEOD.

No. 2387.

Circuit Court of Appeals, Fourth Circuit.

January 12, 1926.

Douglas McKay, of Columbia, S. C. (Thomas W. Davis, of Wilmington, N. C., on the brief), for plaintiff in error.

D. W. Robinson, of Columbia, S. C. (L. D. Jennings, of Sumter, S. C., on the brief), for defendant in error.

Before WADDILL, ROSE, and PARKER, Circuit Judges.

PARKER, Circuit Judge.

This was an action instituted by William C. McLeod against the Atlantic Coast Line Railroad Company to recover damages for personal injuries sustained by him when struck at a railroad crossing by one of its freight trains. He recovered a verdict for $2,000 in the District Court, and this writ of error is prosecuted by the company to reverse the judgment rendered thereon. McLeod was plaintiff in the District Court, and the company was defendant, and for convenience they will be so designated in this opinion.

The injury of which plaintiff complains occurred at or near Broadway Siding, in Sumter county, S.C., where the main highway between Pinewood and Sumter crosses defendant's railroad track from Augusta, Ga., to Florence, S. C. Plaintiff and two of his companions were struck at this crossing by a north-bound freight train some time between 12 and 2 o'clock on the morning of July 3, 1922. The freight train, consisting of a locomotive and 45 cars, was traveling at a speed of around 35 miles an hour. It was making so much noise that it was heard by one of plaintiff's witnesses 250 yards away. The locomotive was equipped with an electric headlight, burning and in good condition.

Plaintiff spent the evening preceding his injury at the home of one Jim Brewer, near the crossing. He testifies that he left Brewers about midnight, in company with two of Brewer's sons, and proceeded to the home of one Agnes Weeks, who lives near the crossing, to employ her to hoe cotton for him next day. He states that, having left the home of Agnes Weeks shortly after mid-might, he and the Brewer boys were walking along the public highway, and were in the act of crossing the railroad track, when they were struck by the approaching freight train, with the result that both of the Brewer boys were killed outright, and plaintiff himself was seriously injured. This was plaintiff's statement on the trial. A short while after the occurrence, however, he stated to the coroner of Sumter county, and also to his attending physician, that he and his companions had been drinking on the night of the occurrence, and that the three of them had gone to sleep on the track; that he was awakened by the train and was in a rising position, getting off, when the train struck him.

The track approaching the crossing was straight, and although there was evidence as to the presence of buildings and other obstruction which would tend to obscure the view of the track as one approached, there was no obstruction that would have shut off the view entirely of the approaching light of the engine. There was evidence on the part of the plaintiff that the crossing signals were not given, but no explanation offered as to why plaintiff did not hear the noise made by the approaching train. The evidence was that persons lying down on the track at or near the crossing could have been seen from the approaching train for a distance of from 300 to 500 feet, and that the train could not have been stopped in less than the train length, which was about 1,800 feet.

At the conclusion of the testimony defendant moved the court for a directed verdict, and we think that the motion should have been granted. Whether plaintiff's injury occurred in the manner narrated by him on the trial, or whether it occurred in the manner stated to the coroner and the physician, we think that the plaintiff has failed to make out a case of liability on the part of the defendant. If we take the plaintiff's testimony in the light most favorable to him, as we must in considering a motion for a directed verdict, it establishes negligence on the part of the company; but it also establishes gross contributory negligence on his part as the proximate cause of the injury. If the testimony of plaintiff himself is to be believed, he stepped directly in front of an approaching train, when by the exercise of the slightest care he could have seen the danger and avoided injury.

This is not the case of a traveler in an automobile, whose attention is occupied in part with the driving of his car, and who is unable to stop instantly because of its momentum. It is the case of a pedestrian proceeding leisurely down a highway at night, with nothing to do but look and...