Brissie v. Southern Ry. Co.

• Decision Date: 14 January 1947
• Docket Number: 15905.
• Parties: BRISSIE v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

41 S.E.2d 97

209 S.C. 503

BRISSIE v. SOUTHERN RY. CO.

No. 15905.

Supreme Court of South Carolina

January 14, 1947

Frank G. Tompkins, of Columbia, and P. A. Bonham, of Greenville for appellant.

W. H. Nicholson, W. H. Nicholson, Jr., and A. R McElhaney, all of Greenwood, for respondent.

TAYLOR Justice.

This case comes to this Court by way of the Court of Common Pleas for Greenwood County where the action was commenced by the service of Summons and Complaint upon the defendant for the negligent and willful killing of the plaintiff's intestate by the defendant on the 13th day of July, 1945, the action being brought under the Lord Campbell's Act for the benefit of the father and mother, brothers and sister of the deceased.

The specifications of negligence set out in the complaint are:

'(1) In operating the said engine and train of cars at a high, dangerous and reckless rate of speed;

'(2) In failing to keep a proper look out on the said engine and in failing to give any notice or warning whatever of the approach of the said engine and train of cars to plaintiff's intestate;

'(3) In operating said engine and train of cars at a high and reckless rate of speed along that portion of its right of way where the public habitually used as a walk-way and as a licensee.

'(4) In failing to blow the whistle or ring the bell or give proper signals on approaching the crossing near which plaintiff's intestate was killed.

'(5) In operating the said engine with dim and insufficient headlights.'

The defendant by its answer entered a general denial and that death of the plaintiff's intestate was due to his own contributory negligence and willfulness.

When plaintiff first closed his case, defendant moved for a non-suit on the grounds that the evidence failed to establish actual negligence or willfulness on the part of the defendant; but on the other hand, did establish that the deceased came to his death by his own contributory negligence and willfulness, which motion was refused by the Court but reserved the right under Rule 79 of the Circuit Court Rules to grant judgment for the defendant non obstante veredicto. The defense then announced that it did not care to offer any testimony, whereupon the plaintiff at this point asked permission to reopen the case for the purpose of offering further testimony, and was allowed to do so over defendant's objection. Whereupon he offered two additional witnesses, one of whom was the engineer in charge of the train.

At the conclusion of this additional testimony, the defense renewed its motion for a non-suit and directed verdict on the same grounds as formerly stated and the Court ruled as previously.

The case having been submitted to the jury and a verdict rendered in favor of the plaintiff for Three Thousand ($3,000) Dollars actual damages, the defense moved for a judgment in favor of the defendant non obstante veredicto which was overruled by His Honor's Order dated June 15, 1946. Hence this appeal.

An examination of the Transcript of Record shows that plaintiff failed completely to prove Items 1, 3, 4, and 5 of his specifications of negligence, but contends by reason of the holdings of this Court in Sentell v. Southern R. Co., 67 S.C 229, 45 S.E. 155; Wilson v. Southern R. Co., 93 S.C. 17, 75 S.E. 1014; Hayes v. Atlantic Coast Line R. Co., 196 S.C. 386, 13 S.E.2d 921; and Leppard v. Southern R. Co., 174 S.C. 237, 177 S.E. 129, there is sufficient evidence to go to the jury on the question of specification 2, in that defendant failed to keep a proper lookout on the said engine and failed to give any notice to plaintiff's intestate or warning of the approach of the engine and train.

In the Wilson case, supra [93 S.C. 17, 73 S.E. 1015], deceased had been drinking heavily and was lying in a helpless state on a straight stretch of track owned by the defendant railway company; the night was bright and nothing to obstruct the view, and the Court said:

'Let us even assume that he was a trespasser, and was killed while lying on the railroad truck in a drunken and helpless condition. It does not, however, necessarily follow that the defendant could run over him with impunity * * *. The rule in such cases is thus stated in a note to Central R. [& Banking Co.] v. Vaughan [93 Ala. 209, 9 So. 468,] 30 Am.St.Rep. [at page] 54, by Mr. Freeman and quoted with approval in Smalley v. [Southern] Ry. [Co.,] 57 S.C. 243, 35 S.E. 489, and Haltiwanger v. [Columbia, N. & L.] R. [Co.,] 64 S.C. 7, 41 S.E. 810: 'The true principle it is conceived is that the engineer should see that the track is clear; but that, when an obstruction is perceived, the...