Bishop v. Atlantic Coast Line R. Co.

• Decision Date: 08 July 1948
• Docket Number: 16101.
• Citation: 48 S.E.2d 620,213 S.C. 125
• Parties: BISHOP v. ATLANTIC COAST LINE R. CO. et al.
• Court: South Carolina Supreme Court

48 S.E.2d 620

213 S.C. 125

BISHOP v. ATLANTIC COAST LINE R. CO. et al.

No. 16101.

Supreme Court of South Carolina

July 8, 1948

J Carl Kearse and Julius B. Ness, both of Bamberg, and Blatt & Fales, of Barnwell, for appellant.

B. D. Carter, of Bamberg, and Douglas McKay, of Columbia, for respondents.

OXNER Justice.

This action was brought to recover damages for the alleged wrongful death of B. D. Bishop who died almost instantly as a result of injuries received in a collision between a 1939 model Chevrolet truck driven by him and a backing locomotive which occurred about 2:45 p. m. on November 29, 1946, at a crossing within the corporate limits of the town of Denmark where the main line and a spur track of the Atlantic Coast Line Railway are intersected by State HighwayNo. 78.

It is alleged in the complaint that the death of plaintiff's intestate was caused by the negligence, recklessness and wilfulness of the Railroad Company and the engineer and fireman in charge of the locomotive, all of whom were joined as partiesdefendant, in failing to keep a proper lookout, in not providing adequate mechanical signals at the crossing, in failing to flag the crossing or otherwise warn travelers of the approach of the backing locomotive, in operating the locomotive without adequate brakes and at an excessive rate of speed, in failing to give the statutory crossing signals, and in erecting or permitting to be erected and maintained on the right of way poles signal boxes and other objects which obstructed the view of travelers approaching the crossing.These allegations were denied by the defendants, who also interposed a defense of gross contributory negligence and wilfulness.At the conclusion of all the testimony, the Court below granted a motion by defendants for a directed verdict upon the ground that the only reasonable inference to be drawn from the evidence was that the plaintiff's intestate was guilty of gross contributory negligence as a matter of law.The correctness of this ruling is the sole issue presented by this appeal.

State HighwayNo. 78 is the main thoroughfare between Charleston and Augusta.The paved portion is 20 feet wide and the shoulders are surface treated.It passes through and connects the towns of Bamberg and Denmark, the two largest towns in Bamberg County.As this highway passes over the crossing in question, it runs east and west and intersects the main line and spur track of the Railroad Company, which at this point run in a northeasterly and southwesterly direction, at approximately a 45 degree angle.The spur track, which is a few feet west of and about three inchs lower than the main track, runs parallel with the main track across the highway, but a short distance south of the crossing it gradually curves away from the main line to the west until at a distance of about four or five hundred feet from the crossing it runs approximately west and parallel to the highway.Here it diverges, one branch going to a coal chute and the other connecting with the Southern Railway, which is about five hundred feet south of the crossing and runs in approximately the same direction as the highway.The spur track is substantially on the same level with the main line except for a small dip of nine inches about halfway between the crossing and coal chute.The testimony of the defendants was to the effect that this spur track was used practically every day for the purpose of 'spotting cars.'

On the afternoon in question, the deceased had loaded the truck with wood at Bamberg and was proceeding along State HighwayNo. 78 in an easterly direction for the purpose of delivering the wood to his sister at Denmark.The locomotive involved in the collision had been used to place some cars and was being backed along the spur track with no cars attached in a northeasterly direction toward the crossing, which placed it to the left of the highway in the direction in which the deceased was driving.

In approaching the town of Denmark from the east, there is a curve in the road about three-quarters of a mile from the crossing, after which the highway is approximately straight.The last house on the left is 2,150 feet from the crossing.The only other major obstruction to a view to the left of the highway is a hedge approximately 800 feet east of the crossing.Near the crossing to the left are a power pole, a telephone pole, signal supply pole and a signal control box.The signal control box is about seven feet east of the main track and at its highest point is approximately seven feet.The evidence is undisputed that when not less than five or six hundred feet from the crossing, a traveler approaching from the east can see to the left down both the main track and the spur track for a distance of at least three or four hundred feet and, therefore, would have a full view within this distance of a locomotive or train as it approached the crossing from the southwest.The poles and signal box mentioned constituted only minor momentary obstructions to the view.There is also nothing to obstruct a full view to the right as the crossing is approached from the east.The crossing is approached on a slight upgrade (the ascent is only six feet over a distance of six hundred feet from the crossing), but there is no testimony showing that this would affect the view of an approaching train.

It appears that at a distance of 58 feet from the center of the highway there is on each side of the crossing an insulated joint in the rails of the spur track and when the wheels of an approaching train reach this point, the stop sign at the crossing turns around and the lights commence blinking.These signal lights are about ten feet from the center of the track.On the main track the 'flash' point is a half a mile from the center of the highway.This difference in the location of the flash points is no doubt due to the fact that the spur track is only used for shifting purposes and the trains are operated very slowly on it.These signals were installed at the request and under the supervision of the State Highway Department and were paid for it as a part of its safety campaign.They are maintained, however, by the Railroad Company.

On the day of the accident the weather was clear.The deceased was approximately thirty years of age and with him was a friend thirty-five years old.Both lived in the same section of Bamberg County and had driven along this highway on numerous occasions.This companion was the only eye-witness offered by appellant.He testified that the truck was in good mechanical condition; that in approaching Denmark they were traveling at the rate of 30 or 35 miles an hour; that at a distance of three or four hundred feet from the crossing, both he and the deceased looked to the left, just about the time they were passing another vehicle going in the opposite direction, but did not see any train; that they then commenced reducing their speed and looked to the right but saw no train; and that they did not see the locomotive until about the time they reached the crossing when the deceased exclaimed 'Oh, my God, the train is going to hit us', and it then looked to him like the locomotive was 'falling right upon us.'He said as they reached the crossing the truck was not traveling over ten or fifteen miles an hour.It is apparently undisputed that the train was not moving over four or five miles an hour.This witness admitted that after looking to the left when three or four hundred feet from the crossing, they never looked to the left again.He testified that although he had frequently passed over this crossing he had never previously observed the spur track.It appears that this witness had lost the sight of his left eye.He said he didn't hear the bell ring or the whistle blow as they approached the crossing.

The conductor and flagman were not on the locomotive at the time of the accident.The brakeman was riding on the right front of the engine and did not see the collision.The fireman testified that as they approached the crossing at a speed of four or five miles an hour, he was looking back and had a clear view of the highway east of the crossing; that he first noticed the truck when it was three or four hundred feet from the crossing and at the same time saw an automobile following it; that when the locomotive was about thirty feet from the crossing, it appeared to him that the locomotive would clear the crossing before the truck reached that point and he then told the engineer the crossing was clear; that when the tender reached the highway, the truck driver had not reduced his speed and 'looked like he was dazed', whereupon he told the engineer to stop the train which he did within a distance of about five feet; and that the truck while going at a rate of forty or fifty miles an hour ran into the left corner of the tender with such force that the rear wheels of the tender were knocked off the track.The engineer testified that in approaching the crossing, he looked and saw no vehicle coming from the west; that when about thirty or forty feet from the crossing, his side was clear, the fireman told him the other side was clear and he proceeded; that about the time the tender reached the highway, the fireman called to him to stop and he immediately applied his brakes, stopped within four or five feet, and then heard the noise of the collision.According to the testimony of various members of the train crew, the usual crossing signal was blown and the bell was ringing and continued to ring until after the collision.

A physician on the staff of the Roper Hospital in Charleston testified that on the day of the accident he was driving alone from Charleston to his home in Decatur, Georgia; that he first noticed the truck...