Brogdon v. Nw. R. Co. Of South Carolina, (No. 12278.)

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtBLEASE
Citation139 S.E. 459
PartiesBROGDON. v. NORTHWESTERN R. CO. of SOUTH CAROLINA.
Decision Date26 September 1927
Docket Number(No. 12278.)

139 S.E. 459

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

(No. 12278.)

Supreme Court of South Carolina.

Sept. 26, 1927


[139 S.E. 460]

Cothran, J., dissenting.

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."

Purdy & Bland, of Sumter, and T. H. Tatum, of 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

[139 S.E. 461]

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 plaintiffs 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 plaintiffs testimony was contradicted by testimony of the...

To continue reading

Request your trial
16 practice notes
  • Key v. Carolina & N. W. Ry. Co, No. 13112.
    • United States
    • United States State Supreme Court of South Carolina
    • April 9, 1931
    ...of the failure to give statutory warning signals requires the submission of the issue of willfulness. Brogdon v. Railroad, 141 S. C. 239, 139 S. E. 459. The appellant now objects to the charge of the trial judge because he instructed the jury, in effect, the "last clear chance" or......
  • Ford v. Atl. Coast Line R. Co, No. 13405.
    • United States
    • South Carolina Supreme Court
    • May 11, 1932
    ...testimony offered by the latter may be contradicted by that of the defendant. Brogdon v. Northwestern Railroad Company, 141 S. C. 238, 139 S. E. 459; McCutchen v. Pae. Mut. Life Insurance Company, 153 S. C. 401, 151 S. E. 67. An application of these just and reasonable rules to the testimon......
  • Stabler v. Southern Ry. Co, No. 13130.
    • United States
    • United States State Supreme Court of South Carolina
    • April 23, 1931
    ...the submission of the first question to the jury. McBride v. Ry., 140 S. C. 260, 138 S. E. 803; Brogdon v. R. R. Co., 141 S. C. 238, 139 S. E. 459; Glenn v. Ry. Co., 145 S. C. 41, 142 S. E. 801; Whitehead v. A. C. L. Ry. Co., 153 S. C. 339, 150 S. E. 769. As to the second question: The appe......
  • Nelson v. Lee, 6 Div. 283.
    • United States
    • Supreme Court of Alabama
    • June 26, 1947
    ...operates to permit its introduction. The following cases from other jurisdictions so hold: Brogdon v. Northwestern Ry., 141 S.C. 238, 139 S.E. 459; Carroll v. Krause, 280 Ill.App. 52. As before pointed out, we are not here dealing with the use of such testimony for the purpose of impeachmen......
  • Request a trial to view additional results
16 cases
  • Key v. Carolina & N. W. Ry. Co, No. 13112.
    • United States
    • United States State Supreme Court of South Carolina
    • April 9, 1931
    ...of the failure to give statutory warning signals requires the submission of the issue of willfulness. Brogdon v. Railroad, 141 S. C. 239, 139 S. E. 459. The appellant now objects to the charge of the trial judge because he instructed the jury, in effect, the "last clear chance" or......
  • Ford v. Atl. Coast Line R. Co, No. 13405.
    • United States
    • South Carolina Supreme Court
    • May 11, 1932
    ...testimony offered by the latter may be contradicted by that of the defendant. Brogdon v. Northwestern Railroad Company, 141 S. C. 238, 139 S. E. 459; McCutchen v. Pae. Mut. Life Insurance Company, 153 S. C. 401, 151 S. E. 67. An application of these just and reasonable rules to the testimon......
  • Stabler v. Southern Ry. Co, No. 13130.
    • United States
    • United States State Supreme Court of South Carolina
    • April 23, 1931
    ...the submission of the first question to the jury. McBride v. Ry., 140 S. C. 260, 138 S. E. 803; Brogdon v. R. R. Co., 141 S. C. 238, 139 S. E. 459; Glenn v. Ry. Co., 145 S. C. 41, 142 S. E. 801; Whitehead v. A. C. L. Ry. Co., 153 S. C. 339, 150 S. E. 769. As to the second question: The appe......
  • Nelson v. Lee, 6 Div. 283.
    • United States
    • Supreme Court of Alabama
    • June 26, 1947
    ...operates to permit its introduction. The following cases from other jurisdictions so hold: Brogdon v. Northwestern Ry., 141 S.C. 238, 139 S.E. 459; Carroll v. Krause, 280 Ill.App. 52. As before pointed out, we are not here dealing with the use of such testimony for the purpose of impeachmen......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT