Brogdon v. Northwestern R. Co. of South Carolina

• Decision Date: 26 September 1927
• Docket Number: 12278.
• Citation: 139 S.E. 459,141 S.C. 238
• Parties: BROGDON v. NORTHWESTERN R. CO. of SOUTH CAROLINA.
• Court: South Carolina Supreme Court

139 S.E. 459

141 S.C. 238

BROGDON v. NORTHWESTERN R. CO. of SOUTH CAROLINA.

No. 12278.

Supreme Court of South Carolina

September 26, 1927

Appeal from Common Pleas Circuit Court of Sumter County; E. C Dennis, Judge.

Action by M. B. Brogdon, administrator of the estate of Jemima Walker, deceased, against the Northwestern Railroad Company of South Carolina. Judgment for plaintiff, and defendant appeals. Affirmed.

The fourth exception which has been directed to be reported is as follows:

"4. That his honor erred in charging the jury as follows: 'Railroads operating across a highway have certain duties to perform. In other words, we must act with due regard for the safety of ourselves and other people. In other words, a man operating an automobile on the road has not the sole right to that road; neither has the man operating a train. While a train has to be operated on a track and cannot dodge, still it must be operated with due regard for the safety of the traveling public. People who use the highway have as much right to use the highway as the railroad has to cross it, and the train has as much right to cross it as the people. Recognizing these different rights, the law says each must operate with due care for the safety of other people as well as for themselves'-the error being that said charge conveyed to the jury the understanding that the respective rights of the parties upon a railroad crossing were the same and that the plaintiff had as much right upon said crossing at the moment of the collision as the defendant had; whereas, the rule is that by reason of its character and momentum and the requirements of the public travel upon railroad trains, that the railroad has the right of way at such crossings, and that under the facts in this case the charge to the jury of equal rights upon a grade crossing on the part of the traveling public and the railroad at the same time, was harmful error."

Cothran J., dissenting.

Purdy & Bland, of Sumter, and T. H. Tatum, Bishopville, for appellant.

Epps & Levy, of Sumter, for respondent.

BLEASE J.

This was an action for actual and punitive damages, tried in the court of common pleas for Sumter county before Hon. E. C Dennis, presiding judge, and a jury.

The plaintiff's complaint, in addition to formal matters, alleged the killing of one Jemima Walker, a colored woman, in a collision of a train of the defendant and a Ford automobile, at what is known as the "Liberty street road" crossing in Sumter county, just without the limits of the city of Sumter. Negligence on the part of the defendant was alleged in failure to give the statutory signals for a public crossing, failure to have a headlight on the engine, although it was about dark at the time of the accident, running of the train at great speed, failure to have the proper sign at the crossing, and failure to have a watchman at the crossing. It was alleged that the occupants of the automobile, Jemima Walker, the deceased, her daughter, Clara Brogdon, two small children of Clara's and Alfred Wilson, the driver of the car, were strangers in Sumter, and were not acquainted with the road and railroad crossing; that the crossing at Liberty street was particularly dangerous, and the dangers were known to the defendant.

The defendant denied all acts of negligence and willfulness charged against it, and alleged contributory negligence and willfulness on the part of Wilson, the driver of the automobile, in that he approached the crossing in a careless and reckless manner, and that he did not look and listen properly.

The verdict was in favor of the plaintiff for $3,500 actual damages.

The defendant has appealed to this court, the exceptions covering several matters hereinafter mentioned.

Exceptions 1, 2, 3, and 7 may be disposed of together. Exceptions 1 and 3 allege error on the part of the trial judge in refusing the motion of the defendant to direct a verdict in its favor on the whole case. Exception No. 2 complains of error because of refusal to direct a verdict in favor of the defendant upon the issue of willfulness. Exception No. 7 alleges that there was error in refusal to grant a new trial on the evidence in the case.

The gist of all these exceptions is this: That even if the defendant was negligent and willful in failing to give the statutory signals for the crossing, the evidence showed that the driver of the automobile was grossly negligent and willful, and that his conduct was the proximate cause of the injuries resulting in the death of the deceased. It is urged that the evidence failed to show that Wilson, the driver of the car, was a stranger in the vicinity and was unacquainted with the roads and crossing; that it appeared that the automobile struck the train at least 48 feet from the front of the train; that the persons in the automobile saw the train when the automobile was in 33 feet of the train; that a Ford car going at the rate of 18 miles an hour could have been stopped within 15 feet; that there was no explanation on the part of the driver of the automobile, who was not produced as a witness; and that the elimination of punitive damages by the jury left nothing to support a verdict for actual damages.

In our opinion, all the exceptions mentioned are based upon the defendant's view of the evidence in the case. It did adduce evidence from witnesses, who testified for it, and by a diagram shown to the jury, that the crossing was no more dangerous than other railroad crossings; that at a point 35 feet from the crossing a driver of an automobile who looked could see down the track for nearly 500 yards; that the signboard could be seen distinctly and was well located; that the sun was still shining at the time of the accident; that the automobile was being run at great speed, and that the driver thereof, entirely reckless as to his own life and the lives of those in the car with him rushed headlong into the moving train, although the bell was ringing and the whistle was blowing, and that the automobile struck the train some 48 feet to the rear of the pilot. If all the evidence in the case agreed with the defendant's view of the evidence, there, of course, should have been a directed verdict for the defendant.

The first obstacle in the way of sustaining defendant's contention is the fact that the jury viewed the place where the accident occurred. The jury saw the condition of the railroad track, the signboard, the storehouse and other buildings located near the track, all of which plaintiff's witnesses testified about.

The viewpoint of the defendant overlooks testimony favorable to the plaintiff's side, which the circuit judge was in duty bound to consider on the motions for directed verdict, and on the motion for a new trial, even if all the plaintiff's testimony was contradicted by testimony of the defendant. The plaintiff's witnesses testified that the crossing was dangerous, that the signboard was very dim, and that there was an absolute failure of the defendant to give the statutory signals. It is true that there was no direct evidence that the driver of the automobile was unfamiliar with the surroundings, as was alleged in the plaintiff's complaint. Perhaps no one could have testified to this positively except the driver, who was not called as a witness. The only occupant of the car who did testify said that she was unfamiliar with the crossing and the surrounding conditions, and that the driver lived in Richland county. It might be held that there was a scintilla of evidence to carry the case to the jury on account of the driver's unfamiliarity with the crossing. We do not think, however, even if there was no evidence whatever as to the driver's unfamiliarity, that such fact alone would be sufficient to disturb the holdings of the trial judge. The familiarity or unfamiliarity of the driver with the crossing was a question for the jury to consider on the issue of contributory negligence of the driver in the circumstances.

We do not think it necessary to cite a long list of authorities to show that the presiding judge was right in all his rulings questioned by the exceptions under consideration. We need to refer to but two recent authorities: Jennings v. Northwestern Railroad Co., 138 S.C. 385, 136 S.E. 639, and McBride v. A. C. L. Railroad Co. (S. C.) 138 S.E. 803.

In the Jennings Case, where the accident occurred at the same crossing referred to in this case, the evidence on the part of the defendant was almost the same as the evidence offered by the same defendant in the case at bar. This court sustained the refusal of the trial judge in the Jennings Case to direct a verdict for the defendant.

In the McBride Case, Mr. Justice Stabler cleared up some of the confusion formerly existing in our law as to accidents occurring at railroad crossings. In that case, it was held that when a person is injured at a crossing and the railroad failed to give the signals required by law, that the presumption arises that the failure to give such signals was the proximate cause of the injury. Whether or not the defendant in this case gave the signals was a question of fact for the jury to determine. Evidence of the failure to give such signals not only required the circuit judge to send the case to the jury on the issue of actual damages, but also...