Brown v. Southern Ry. Co.

• Decision Date: 07 March 1918
• Docket Number: 9916.
• Citation: 96 S.E. 701,111 S.C. 140
• Parties: BROWN v. SOUTHERN RY. CO. ET AL.
• Court: South Carolina Supreme Court

96 S.E. 701

111 S.C. 140

BROWN v. SOUTHERN RY. CO. ET AL.

No. 9916.

Supreme Court of South Carolina

March 7, 1918

Appeal from Common Pleas Circuit Court of Spartanburg County; T. S Sease, Judge.

Action by John H. Brown, as administrator of Fred V. Tuck, deceased against the Southern Railway Company and others. From judgment for plaintiff, defendants appeal. Affirmed.

Fraser J., dissenting.

Nicholls & Nicholls and John Gary Evans, all of Spartanburg, for appellant City of Spartanburg.

Sanders & De Pass, of Spartanburg, for appellant Southern Ry.

Co Bomar & Osborne, of Spartanburg, for respondent.

GAGE J.

Action against the Southern Railway Company and its lessors and the city of Spartanburg for a joint tort to the person of one Fred V. Tuck; verdict for the plaintiff for $6,000; appeal by the defendants.

The trial court was beset with difficulties on every hand; the plaintiff proffered 22 requests to charge, the railway companies had 26 requests, and the city sent up 25 requests. And here the railway companies have made 25 exceptions, and the city has made 33 exceptions. Fortunately the railroad company has argued only five questions, and the city has argued twice that number; but there are not nearly nine vital issues in the case. The nine issues will be considered in their order after some history of the controversy is detailed.

In the city of Spartanburg, from, at, or near the United States post office on North Church street, there runs towards the east a street called Elm. Going east on that street some 200 or 300 yards, and down a considerable grade, the traveler reaches the Southern Railway trestle which crosses the street overhead. On the instant occasion a wagon was loaded with three bales of cotton, two on the wagon bed lengthwise with the wagon and one bale on top of those crossways. A witness thus describes how the accident occurred:

"We were sitting on the top bale of cotton on the wagon as we entered Elm street. At the top of the hill we looked down and could see the trestle. It looked like we could go under it all right. As we approached it, we got down onto the front bale of cotton. When we got to the trestle, we nodded our heads down, and it looked like we could get under it all right. After we got down on the front bale, we nodded our heads down, and it looked like we could go under all right. Both bowed our heads. Father was crushed by the beams on the trestle. He was sitting on the right-hand side. I was on the left. It knocked me off."

The father was killed. It was conceded that the middle trestle was built about 1878, and the other two trestles in recent years. The elevation of the bottom of the trestle at the time of the accident was about eight feet. The middle trestle had eight inches less elevation from the roadbed than the two side trestles.

The delicts laid to the defendants are these: (1) That the trestle was triple and supported triple tracks, and the middle trestle was of a lower elevation than the trestles on each side of it, so that the traveler going east on Elm street was misled on approaching the first trestle to think the middle trestle was of like elevation to the first; and (2) that the roadway of Elm street underneath the trestle had been unduly elevated so as to impede vehicles in passing underneath the trestle.

The railway company makes but one major question; the others are minor. The major issue is thus stated by the company:

"His honor erred in instructing the jury that the duty of the railway company to keep the street under its trestle in repair, and in refusing to instruct the jury that this duty devolved upon the city of Spartanburg, and that if the trestle was originally built in a reasonably safe way, and that the underpass became dangerous by the street being filled in by the city, or by reason of the city permitting it to be filled in, that the railway company would not be responsible."

In considering the defense of the company it is sometimes so entwined with the defense of the city that we shall naturally mix up the questions which the two defendants have made.

The requests to charge and the exceptions are too voluminous to set out, much less to consider seriatim. There is much in them about "repair" and "defect"; but the cardinal matter up for inquiry and for decision was a proper and responsible elevation betwixt roadbed underneath and trestle timbers above.

The court declined to instruct the jury, upon request of the railroad company, that if that elevation was insufficient for the passage of vehicles, and that insufficiency was caused by the raising of the roadbed by the city of Spartanburg, then it was not the duty of the railroad company to remedy the obstruction thus created. The plaintiff had no request which stated the contrary of this postulate.

The railroad company and the city both denied that they had raised the roadbed; and there is no direct testimony tending to prove that the roadbed was raised in any specific time of a purpose. Two or three witnesses testified only to the circumstance that a recent excavation in the roadbed by the railroad company underneath the trestle indicated that foreign matter had at some time found its way into the roadbed there; but none of the testimony tends to show that there was any appreciable raising of the roadbed at that point. The aforesaid request of the railroad company was therefore irrelevant to the facts of the case; it was based upon a factitious issue.

The street was dedicated to the public use 30 or more years before the trestle was erected. The public had the right to its unobstructed use. When the trestle was built and when the two side trestles were added the obligation to leave open a sufficient way for the public to pass under it was upon both the railway company and the city. If the company left an insufficient elevation betwixt roadbed beneath and trestle above for the passage of vehicles, that was a legal wrong to the public. The statute declares:

"Sec. 3285: When a railroad is laid out across a highway * * * it shall be constructed so as not to obstruct the same."

The city's duty in the circumstances was to prescribe the manner of crossing the street. The statute declares:

"Sec. 3286: A railroad corporation may raise or lower any highway * * * for the purpose of having its road pass over or under the same; but before proceeding to cross, alter, or excavate for the purpose of crossing the way, it shall obtain from the" proper municipal authorities "a decree prescribing what alteration may be made in the way, and the manner and time of making the alterations or structures the" municipal authorities "may require at the crossing; and before entering upon, excavating, or altering the way, shall give security satisfactory to the" municipal authorities "* * * that it will faithfully comply with the requirements of the decree * * * and indemnify the city * * * from all damages and charges by reason of any failure to do so."

It was as much the duty of the city to see that the statute was observed as it was of the company to follow the statute. The city and the company were therefore made by the statute joint enterprisers, and any delict thereabout was a joint tort.

The railroad company does not contend that if the elevation in question remained unchanged, and if it was insufficient at the start and continued so, then the company is free from liability. Nor can the city deny that under like circumstances its duty was breached. The argument of the company, though, is that, if the elevation was after the first erection changed by the act of the city, as the company holds it was, then the company is not brought into the wrong. As we have said, the testimony does not make that case. But if the testimony made such a case, yet where the statute has cast joint action on the two parties the company and the city, where they had concurrent jurisdiction at a crossing, the obligation on each was commensurate with the power of each,...