Bingham v. Powell, 15.151.

• Decision Date: 31 October 1940
• Docket Number: No. 15.151.,15.151.
• Citation: 195 S.C. 238,11 S.E.2d 275
• Parties: BINGHAM. v. POWELL et al.
• Court: South Carolina Supreme Court

195 S.C. 238

11 S.E.2d 275

BINGHAM.

v.POWELL et al.

No. 15.151.

Supreme Court of South Carolina.

Oct. 31, 1940.

Appeal from Common Pleas Court of Darlington County; E. H. Henderson, Judge.

Action by Lawrence Bingham against L. R. Powell, Jr., and another, as receivers of the Seaboard Air Line Railway, for injuries sustained when an automobile which plaintiff was driving collided with defendants' freight train. From a judgment for plaintiff, defendants appeal.

Affirmed.

Robert W. Shand, of Hartsville, and Dargan & Paulling, of Darlington, for appellants.

Cole L. Blease, of Spartanburg, and Blease Ellison, of Columbia, for respondent.

STUKES, Justice.

This is an action for actual and punitive damages alleged to have accrued to the plaintiff (in which, however, the jury found only actual damages) as the result of personal injuries received in a collision between plaintiff's automobile which he was driving and a freight train of the defendants. The collision occurred on September 28, 1938, on a public road known as the "Old Society Hill and Darlington Highway" at a grade crossing of a branch or side track of the defendants' railroad, apparently used to serve an industrial plant and referred to by one of defendants' counsel as the "Bleachery siding", about a half mile from the city limits of Hartsville. The impact of the automobile was with the second freight car from the locomotive while the train was at rest, being engaged in switching operations. Thus the road was completely obstructed by the stationary train, there being off the road to plaintiff's left as he approached the crossing about one and a half freight cars (each in total length thirty to forty feet) and b'eyond them the locomotive; to the right there were seven or more cars. It was after nightfall and it was raining; and plaintiff testified that his vision was further obstruct'ed, until it was passed, by the lights of a parked automobile about seventy-five feet from the track, facing him on his left, and that he saw the cars only when in a few feet of them, whereupon he applied his brakes and the collision followed, he having time only sufficient to warn his companion.

Plaintiff alleged as negligence, recklessness and wilfulness on the part of the defendants the failure to provide warning of the presence of the train by notice, sign, signal, light, flagman or watchman; and also the failure to have the necessary number of men in the crew of the train and in allowing the train to remain upon the highway and thus obstruct the latt'er for an unreasonable and unnecessary length of time. The answer contained in effect a general denial of the material allegations of the complaint and the plea of contributory negligence, recklessness and wilfulness on the part of the plaintiff.

There is found no testimony as to the number of men in the crew of the train but several testified who were members of the crew and each of such testified that he was engaged in some duty which occasioned his presence at one end or the other, or practically at the end, of the train, and it is undisputed that no member of the crew was at the crossing and none was making any effort to warn highway travelers of the presence of the train. Plaintiff's witness, Harrell, who operated and was present at a filling station on the road "thirty-two or thirty-three steps" beyond and on the other side of the train from plaintiff's approach to the crossing, testified that he had noticed the train before the collision "shifting, in and out", and that it had been at rest over the crossing for two or three minutes before the collision. Members of the train crew varied in their testimony as to the length of time that the train had been stopped over the crossing from "between thirty seconds and a minute" to "between one minute and one and a half minutes".

At the time of the wreck there was a building, since removed, on plaintiff's left of the road and about thirty feet therefrom, which plaintiff testified did not obstruct his view of the crossing but cut off his view of the engine if the latter was to the back of it as he approached.

Further reference to the facts which the plaintiff's evidence tended to prove will be later made, but it may be here stated that a considerable portion of the testimony centered about the contention of the defendants that the plaintiff was drunk at the time of the occurrence. However, the testimony thereabout was in conflict; physicians who saw the plaintiff at the hospital, where he was promptly taken for treatment of his painful and extensive injuries which rendered him temporarily unconscious according to his and other testimony, differed sharply as to whether he was under the influence of an intoxicant; and one of the trainmen, a defendants' witness, testified that the plaintiff was not drunk. Odor of whiskey was upon him and after the wreck an open bottle was found on the floor of the automobile from which whiskey had Spilled and which still contained a small amount. Plaintiff testified that this was the property of a formerpassenger in the automobile who had just before been put out at his home. Plaintiff lived in Hartsville and the occasion of his trip was to take to their respective homes several friends with whom he had been at the armory. At the time of the collision there remained in the car only one passenger, for whose home the automobile was bound, and who testified at the trial as a witness for the plaintiff and largely in corroboration of him.

Despite motions in behalf of the defendants for nonsuit and directed verdict, the trial judge submitted all issues to the jury with the result mentioned above. Defendants have appealed upon a single exception charging error in the refusal of their motions for nonsuit and directed verdict upon grounds as follows:

"(a) That the plaintiff has failed to prove any actionable negligence on the part of the defendants, and

"(b) That the evidence is susceptible of no other reasonable inference than that the plaintiff's gross negligence, unlawful conduct and recklessness caused or contributed to his injuries, as a proximate cause, without which they would not have occurred; whereas the evidence produced by the plaintiff and his witnesses, when considered alone, and all the evidence in the case, when considered as a whole, proves conclusively that the plaintiff's negligent, reckless and unlawful conduct was the sole or a contributing proximate cause of the injuries complained of, and excludes any other reasonable inference."

It is well established that in passing upon the defendants' motions below it was incumbent upon the court to view the testimony for the plaintiff in the most favorable light to him and...