Britt v. Seaboard Coast Line Railroad Company, Civ. A. No. CA/67-460.

• Decision Date: 12 March 1968
• Docket Number: Civ. A. No. CA/67-460.
• Citation: 281 F. Supp. 481
• Court: U.S. District Court — District of South Carolina
• Parties: Arthur Victor BRITT, Administrator of the Estate of Henry George White, Deceased, Plaintiff, v. SEABOARD COAST LINE RAILROAD COMPANY, formerly Seaboard Air Line Railroad Company, Defendant.

281 F. Supp. 481

Arthur Victor BRITT, Administrator of the Estate of Henry George White, Deceased, Plaintiff, v. SEABOARD COAST LINE RAILROAD COMPANY, formerly Seaboard Air Line Railroad Company, Defendant.

Civ. A. No. CA/67-460.

United States District Court D. South Carolina, Columbia Division.

March 12, 1968.

Rion & Britt, Columbia, S. C., for plaintiff.

H. Simmons Tate, Jr., Boyd, Bruton, Knowlton & Tate, Columbia, S. C., for defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

DONALD RUSSELL, District Judge.

This is an action to recover for the alleged wrongful death of Henry George White under Lord Campbell's Act (Section 10-1951, Code of Laws of South Carolina, 1962). The jurisdiction of the Court is based on diversity of citizenship between the plaintiff and the defendant; the amount in controversy is in excess of $10,000.00.

In compliance with Rule 52(a), Rules of Civil Procedure, 28 U.S.C.A., I find the facts specially and state my conclusions of law thereon in the above cause, as follows:

FINDINGS OF FACT

About one o'clock on the morning of August 7, 1966, a train operated by the defendant was proceeding north along the main line of the defendant railroad between Charleston, South Carolina, and Hamlet, North Carolina. After passing through the village of Centenary, South Carolina, it ran over the prostrate body of the deceased, who was lying on and parallel with one rail, on the left-hand side of the railroad, with his head to the north, at a point where such track crosses a small field road known as the Gibson farm road. The road is apparently not a public road but one used in the operation of the Gibson farm. The crossing is about 1400 feet from the railroad crossing over the main thoroughfare in the village of Centenary.

As a train approaches Centenary, a small, unincorporated village of about two hundred to three hundred inhabitants, and passes northward towards the Gibson road crossing below the village where the deceased was struck, it passes three "whistle boards". The first of these, marking the Centenary street crossing, is located some 1600 feet south of the crossing itself, the second, marking a dirt county road crossing just beyond the Gibson road crossing, at a point about 1036 feet south of the Gibson road crossing, and the final one, for the crossing over State Highway 41, is about 734 feet south of the Gibson road crossing. Under the railroad's operating rules regarding such "whistle boards", it is the duty of the engineer, as he reaches such "whistle boards", to sound repeatedly his whistle and to ring his bell continuously until he has passed over the crossing, warning of which is called for by the "whistle board". Because of the contiguity of the "whistle boards" in this case, an engineer operating a train going north would be repeatedly sounding his whistle and continuously ringing his bell from a point more than a quarter of a mile before he reached the Centenary street crossing to the Gibson farm road crossing and beyond.

Between the main street crossing in Centenary and the Gibson road crossing, the rail line is straight.

There is a fairly regular schedule of night trains operating on this railroad line between Charleston and Hamlet. The residents of the Centenary community, including all the adult members of the deceased's family, were reasonably acquainted with the schedules of such night trains. One of these trains, which normally moved northward over this line, came through Centenary at about 1:00 a. m. and was the train which struck the deceased.

On the night of August 6, 1966, this one o'clock train was under the control of Engineer Barlow. Prior to leaving the Charleston Yards he had tested the brakes and lights on his train and found both in good order. As he approached within about a quarter of a mile of the crossing over the main street of Centenary and as he passed the "whistle board" at that point, he testified he began to blow his whistle and set his automatic bell to ringing and continued to do so until after he had hit the deceased. This testimony of Engineer Barlow was corroborated by the Brakeman Carter, who was riding in the engine cab with Barlow. Any testimony offered by the plaintiff to the effect that the statutory signals were not given by the defendant as its train passed through Centenary and approached the Gibson farm road is vague and indefinite. Typical of such testimony was that of the deceased's mother-in-law. She had retired for the night, was on the opposite side of house from the railroad line, and was better than a third of a mile from the train when it crossed the main street of Centenary. She merely testified that she did not hear the whistle or the bell until the screeching of the train's brakes, or its "lamentations", as the plaintiff's witnesses described it, attracted her attention and that then for the first time she heard the train's bell ringing. It is not unreasonable that she may not have noticed the train, its whistling or its bell ringing, until the screeching of the engine's emergency brakes rent the air.¹ I do not regard this testimony of the plaintiff, almost entirely negative in character, sufficient to justify my disregarding the positive and categorical testimony of Barlow and Carter, even though they may be interested witnesses, that the whistle sounded and the bell was ringing.² I conclude that the defendant's whistle was sounding and its bell was ringing continuously for some 2500 feet before the deceased was hit.

The train involved in this accident was, according to the undisputed testimony, traveling at a speed of about 40 miles per hour as it passed through Centenary and approached the Gibson farm road. Such speed was reasonable under all the circumstances. The train consisted of three engines and 125 box cars, of which all but thirty were empty. According to the expert testimony, such train, traveling at its undisputed speed and pulling its admitted load, required about 1475 feet within which to stop after the application of its emergency brakes. It actually stopped within a few feet less than 1450 feet after the emergency brakes were applied.

The train was equipped with two direct-beam lights. The witnesses for the defendant fixed the outermost reach of such lights as about 800 feet. Some of the plaintiff's witnesses indicated that such lights pierced forward for more than the distance estimated by defendant's witnesses. However, no one of plaintiff's witnesses was giving more than a broad guess based on very general observation. I cannot believe that any one of these witnesses ever attempted to fix definitely by observation the distance forward these train lights illuminated with clearness. It is possible, of course, looking towards a light, to see it for a great distance farther than the lights themselves will provide clear vision forward. A common experience in this regard is the observation of a lighted car at night. On a straight stretch, such lights can be observed at night for a mile or more but the actual range of forward clear vision afforded by such lights to the driver of the car is often far less than a tenth of a mile. In my judgment, the testimony of plaintiff's witnesses, as they attempt to fix the forward range of the train's headlights, confuse these two situations. It may well be that one standing on the railroad right-of-way could discern the headlights of the train a mile away as the train came towards him but, on the other hand, the engineer on the train would have a range of vision forward, as a result of the headlights, of no more than 800 feet. I find that the extreme range of forward vision, made available to the engineer, by the headlights of the engine in this case was no more than 800 feet.³ This range, however, would not give the engineer or the brakeman riding with him necessarily a clear and definite view of every object on the railroad roadbed at such distance. To discern and identify clearly an object on such roadbed could well require a considerably closer view.

There was a path about 2 or 3 feet east of the track itself along which persons wishing to walk from Centenary proper down to any of the houses located below the Gibson farm could travel. The use of such path by pedestrians, to the knowledge of the defendant is established. However, the defendant minimizes the use of such path. It points out that, apart from the Gibson house itself (the occupants of which, it seems conceded, never used the path) there are only two houses beyond, to which persons would likely travel by this path from Centenary. One of these homes was occupied by the deceased. Considering the population of Centenary and the sparsely settled area about the Gibson road crossing, it would seem that the traffic along this path was quite limited and confined to persons who were well acquainted with the train schedules along the rail line.

Moreover, the path used was sufficiently distant from the track to permit trains to pass without injury to persons walking along the path. The deceased's mother-in-law, who was a long-time resident in the community, fully corroborated this fact. The plaintiff offered testimony, however, that at night, persons walking along the railroad preferred to walk between the rails because of fear of snakes along the sides of the right-of-way.

On the day preceding the death of the intestate, plaintiff offered evidence to indicate that the intestate had been drinking and that he continued to drink intermittently during the day and the night before he was hit by the train. His widow testified that he bought in the morning a half-pint of whiskey, which he drank. On the other hand, a companion who saw him later and rode about with him, said that he could not detect any indications of drinking by the deceased. Another witness, who told of seeing him in the late afternoon drink a beer, denied he was drunk and described his actions as normal. The operator of a beer and...