Bell v. Atlantic Coast Line R. Co.

• Decision Date: 02 February 1943
• Docket Number: 15497.
• Citation: 24 S.E.2d 177,202 S.C. 160
• Parties: BELL v. ATLANTIC COAST LINE R. CO.
• Court: South Carolina Supreme Court

24 S.E.2d 177

202 S.C. 160

BELL v. ATLANTIC COAST LINE R. CO.

No. 15497.

Supreme Court of South Carolina

February 2, 1943

[Copyrighted Material Omitted]

Douglas McKay, of Columbia, and Reynolds & Reynolds, of Sumter for appellant.

Shepard K. Nash, of Sumter, for respondent.

BONHAM Chief Justice.

J. P Bell, as plaintiff, instituted an action for the recovery of actual and punitive damages in the Court of Common Pleas for Sumter County, by the service of summons and complaint against the Atlantic Coast Line Railroad Company, as defendant, about February 24, 1942, arising out of injuries which the plaintiff, a policeman in the town of Mayesville, alleges that he sustained on or about the night of November 28, 1941, while he was making his rounds of duty in the town and in the county named. In the complaint it is alleged that the main highway through that town crosses a track of the defendant, and that while the plaintiff was standing about twenty feet from that crossing, a freight train which the defendant was operating on that track passed through the town at a high and rapid rate of speed, in the course of which it "picked up from the planking placed by the defendant at said crossing, a piece thereof which had pulled off of said planking, which said piece of planking was about three inches in diameter and about eight feet long, and threw the same against the right side" of plaintiff.

The complaint further alleged "that under the law the defendant is required to maintain said crossing in a proper manner so as to make the said crossing safe for the use of the public generally and this plaintiff in particular," and "that the law further imposes the duty upon the defendant, at the expense of the defendant, to so guard or protect its rails by plank, timber or otherwise, as to secure a safe and easy passage across its roadbed, and that the defendant did so construct the crossing hereinbefore referred to, by the placing of heavy planking near the iron rails across said highway, said planking having been placed by the said railroad at said crossing a number of years ago," and that "it was the duty of the defendant to so keep and maintain the planking at said railroad crossing placed there by the defendant" (at a point which it is alleged the defendant knew to be a greatly traveled place) "in a good and sound condition and not permit the same to become cracked or weatherworn, then to replace the same with sound planking, all of which duties the defendant failed to do and perform," and that in such failure, and in its failure to inspect the said planking, and in its operation of a freight train in such a manner as to permit some part of the train to catch and throw the broken part of the planking endwise against the plaintiff, the defendant was "negligent, reckless, careless, wanton and willful."

In its answer, the defendant denied all of the allegations of the complaint, and the cause came on to be heard before the Honorable S. J. Royall, Special Judge, and a jury, on April 23, 1942. At the close of the testimony counsel for the defendant made a motion for the direction of a verdict upon two grounds, the first of which was "that there is no evidence of willfulness in this case to warrant the issue of punitive damages being submitted to the jury." The motion was overruled by the Court, and the jury found a verdict in favor of the plaintiff for $500 actual damages and $500 punitive damages, following which the defendant moved for a new trial solely upon the ground that the jury erred in awarding punitive damages. On the following day an order was signed by the trial judge denying the motion for a new trial, in which order it is stated: "The defendant moved for a new trial as to punitive damages. *** I am of opinion that the question of punitive damages was properly submitted to the jury under the testimony." From this order, and the judgment entered thereon, the defendant appealed to this Court upon six exceptions, two of which we quote at this point: "4. The trial Court erred in refusing to direct a verdict against punitive damages and in submitting the issue to the jury on the ground that evidence of violation of a statute alone warranted sufficient implication or evidence of willfulness, since there was no real evidence of willful or wanton or even grossly negligent misconduct on defendant's part to sustain punitive damages.

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"6. The trial Judge erred in refusing to set aside the verdict as to punitive damages and in holding that in addition to the implication arising from evidence of statutory violation there was evidence of gross negligence on the part of defendant's section master, in that there is no reasonable inference to be drawn from the testimony that the section master was grossly negligent, and furthermore that willfulness and more than gross negligence would have to be reasonably inferable to sustain the finding of punitive damages."

It will be seen, therefore, that no question pertaining to actual damages is before this Court.

The portions of the complaint which we have quoted allege certain requirements which the law of this State imposes upon this defendant, and it will be seen that some of these specific, statutory requirements are set forth in the two following quoted Sections of the Code of Laws of South Carolina for 1942:

"§ 8433. A railroad corporation whose road is crossed by a highway or other way within the corporate limits of any city, town or village, on a level therewith shall, at its own expense, so guard or protect its rails by plank, timber or otherwise as to secure a safe and easy passage across its road; and if, in the opinion of the proper municipal authorities thereof, any subsequent alteration of the highway or other way, or any additional safeguards, are required at the crossing, they may order the corporation to establish the same.

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"§ 8473. Wherever any steam or electric railway operated in this State is now or may hereafter be crossed at grade by a public highway, the persons, firms or corporations operating such railways are hereby required to construct and maintain safe and adequate glade crossing meeting the requirements of the authorities responsible for such highways; that is to say, that in case of grade crossings of State highways over such railways, the state highway department shall have the power to specify the character of the grade crossings, and the owners of the railways shall at their own expense construct and maintain the said crossings to meet the specifications of the state highway department, and in case of grade crossing of county or township highways over such railways, the same power shall be vested in the county or township authorities.

"Any persons, firms or corporations owning any electric or steam railway and failing or refusing to comply with the provisions of this section after having been notified by the proper authorities, in writing, and after the lapse of thirty (30) days from the date of such notice, shall, upon conviction, pay a fine of ten ($10.00) dollars per day for each day's delay. It shall be the duty of the state highway department in the case of State highways and county or township authorities in case of county or township highways to make complaint to any court of competent jurisdiction within the county where the offense is committed, and to furnish evidence before such court, whenever a violation or violations of this section may occur."

Before discussing the general law and the statutes which are involved here, we wish to examine briefly the testimony from which an inference of such a degree of negligence as would support an award of punitive damages was held to exist upon the trial in the Circuit Court.

Mr. G. A. Simpson, who for more than thirty years had been the section master for the defendant company, and who has charge of maintenance of the tracks and the crossings in the town of Mayesville, testified that he was familiar with the crossing in question which is used by heavy trucks and caterpillars, and where the traffic is heavy, and where the highway department had been doing some work about the time of the accident. He testified that he inspected or "watched" the crossing under consideration approximately once or twice a week; that its condition looked all right to him, that he had inspected it only a few hours prior to the occurrence of the accident now under discussion, at which time there was no evidence of a long cracked plank, or any other defect which he could see in passing over the crossing; that "if that board came from there it was right in place and I never saw the cracks"; that no complaint had been made to him by the town officials that the crossing was not in good condition; that the board which was exhibited to him at the hearing was of cypress; that the plaintiff, who is an old section master himself, is a friend of his, and that two or three days after the accident the witness called on him and inquired whether anything was wrong with the crossing, whereupon the plaintiff said "no, not a thing, it had to be something dragging on the train to choke that piece of board, or whatever it was, off."

Upon cross examination by counsel for the plaintiff, the witness testified that in his opinion the planking at the crossing had been put in place about two years prior to the accident that whenever a split is discovered, the board is removed and is replaced with another if one is immediately available, otherwise the witness orders new boards, and until they arrive, the cavity caused by the removal of the split board is filled with rock; that if the crack in the present board had been visible, he would have seen it, and that the split in the board which was exhibited to him appeared to have...