Brown v. Powell, 15345.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: The opinion of the Court was delivered by MR. ACTING ASSOCIATE JUSTICE G. DUNCAN BELLINGER.
• Citation: 18 S.E.2d 212,198 S.C. 403
• Parties: BROWN v. POWELL et al.
• Docket Number: 15345.
• Decision Date: 29 December 1941

18 S.E.2d 212

198 S.C. 403

BROWN
v.
POWELL et al.

No. 15345.

Supreme Court of South Carolina

December 29, 1941

Dargan & Paulling, of Darlington, and Woods & Woods, of Marion, for appellants.

W. B. Norton, Sr., and W. B. Norton, Jr., both of Marion, for respondent.

G. DUNCAN BELLINGER, Acting Associate Justice.

This is a suit instituted by the respondent in the Court below in her representative capacity as administratrix of the estate of Pharoah C. Brown, deceased, against the receivers of the Seaboard Air Line Railway Company for the recovery of damages, both actual and punitive, alleged to have been suffered by respondent as the result of the destruction of an automobile owned and operated by her intestate at the time of its collision with a train of box cars then being owned and operated by the appellants. The collision out of which this action arose occurred at a point where State Highway No. 175 crosses the tracks of the appellants about 300 yards north of the Town of Centenary, in Marion County.

The allegations of appellants' negligence, recklessness, and willfulness specified in the complaint are as follows:

(a) In leaving a train of box cars standing motionless, at night, across a much traveled public highway for an unreasonable length of time; (b) in leaving a train of box cars standing motionless at night across a much traveled public highway for a greater period of time than permitted by the statute laws of this State; (c) in failing to place lights in the said highway or on the said train so as to warn respondent's intestate, and the other traveling public of the presence of a train standing at night across the said much used highway; (d) in failing to place a flagman or other employee at the said crossing to warn respondent's intestate, and the other traveling public of the presence of a train standing at night across the said much used highway; (e) in failing to give warning by bell, whistle, or otherwise, of the said motionless train standing at night across the said much used highway; (f) in permitting a train to be operated through the State of South Carolina without sufficient number of men [198 S.C. 406] in its crew to furnish proper lights, signals, and warning to respondent's intestate, and others of the traveling public; (g) in failing to cut the said train standing across the said much used public highway so as to clear the same for respondent's intestate's automobile and other vehicular travel within a reasonable time.

The appellants in their answer admitted certain formal matter plead in the complaint, and also that a collision occurred between the automobile of respondent's intestate [18 S.E.2d 213] and the train of cars of the appellants, and that the automobile was demolished, but the appellants deny the remaining allegations set forth in respondent's complaint, and by way of affirmative defense plead that the collision was due to the contributory recklessness, willfulness, wantonness, and unlawful conduct of the respondent's intestate.

The case came on for trial before Honorable Wm. H. Grimball, Presiding Judge, and a jury, at the November, 1940, term of the court of common pleas for Marion County, and resulted in a verdict for respondent for both actual and punitive damages. At the conclusion of respondent's testimony, the appellants moved for a nonsuit upon the following grounds:

"(1) In no view of the case has the plaintiff established any right to recover punitive damages, and there is nothing upon which a verdict for punitive damages could properly be based.

"(2) There is a failure of any such evidence of either negligence or willfulness, wantonness or recklessness on the part of the defendant as would justify the submitting of defendant's alleged negligence or willfulness, wantonness or recklessness to the jury.

"(3) The only reasonable inference of which the testimony in the case is susceptible is that the plaintiff's intestate himself was guilty of such negligence, willfulness, wantonness or recklessness or of such gross or willful negligence as to defeat any right of the plaintiff to recover.

" [198 S.C. 407] (4) Because it appears from the evidence that if plaintiff's intestate had been driving at a lawful rate of speed he could have stopped upon seeing the train, whereas he drove up to the railroad crossing at a high, reckless, and dangerous rate of speed, in excess of that allowed by law, and such violation of law on his part was grossly negligent and reckless, and contributed to his injury as a proximate cause thereof."

The trial judge overruled appellants' motion for a nonsuit, but withdrew from the jury's consideration, because of...