Callison v. Charleston & W.C. Ry. Co.

• Decision Date: 20 October 1916
• Docket Number: 9548.
• Parties: CALLISON v. CHARLESTON & W. C. RY. CO.
• Court: South Carolina Supreme Court

90 S.E. 260

106 S.C. 123

CALLISON v. CHARLESTON & W. C. RY. CO.

No. 9548.

Supreme Court of South Carolina

October 20, 1916

Appeal from Common Pleas Circuit Court of Greenwood County; C.J Ramage, Special Judge.

Action by James W. Callison against the Charleston & Western Carolina Railway Company. From a judgment for plaintiff defendant appeals. Affirmed.

J. B Park, W. H. Nicholson, and F. B. Grier, all of Greenwood, for appellant.

Featherstone & McGhee and Tillman & Mays, all of Greenwood, for respondent.

HYDRICK J.

Defendant appeals from judgment for plaintiff for $1,000 damages to his person and automobile caused by collision with defendant's locomotive on a street crossing.

The Southern Railway runs through Main street in the town of Greenwood, practically dividing it into two streets, one on either side of the railroad. Defendant's road runs parallel with the Southern for some distance south of the business center of the town, and then curves to the right, going in a southwesterly course, and crosses the south side of Main street on a long curve, and at a very oblique angle with the street. About the middle of the street, a spur track branches off to the left going to a turntable. There is a great deal of travel over this crossing, especially in automobiles. Under ordinary conditions, one approaching it from the south, as plaintiff did, has an unobstructed view of it, and of the track approaching it from the north, as the engine did; but, at the time of the collision, it was raining very hard, and plaintiff's wind shield was up, so that his view of the crossing and track approaching it was obscured by the rain and water on his wind shield. For the same reason the view of those on the engine was obscured.

Plaintiff testified that on September 24, 1914, he was driving up the south side of Main street, going into Greenwood, at a moderate gait, and, when he approached this crossing, he threw off the power of his engine, slowed down, and looked to see if the crossing was clear. Seeing that it was he proceeded across, and, to cross the tracks at right angles, he steered his car to the left and crossed the spur track, and just as the front wheels of his car got on the main line, he saw the engine coming upon him, and, before he could get off the track, it struck the front part of his car, and the impact threw him against the back of the seat. That, at the time, he did not think he had sustained any personal injury, and so told the engineer and fireman, who came to his assistance, after they had stopped the engine; but afterwards his back began to hurt him and continued to hurt him, and after a month or so he consulted his physician, but his back continued to hurt him up to the time of the trial. He said that he was alert on the occasion, but heard no signal of the approaching engine--no sound of bell or whistle, nor noise of the moving engine and train of freight cars which it was drawing. The engine was not going very fast, and he thought it must have been coasting downgrade to have been moving so noiselessly. There was nothing to prevent his hearing the noise of the train, except the noise made by his own engine and car, the rain, and the running of the machinery of a nearby oil mill.

The engineer testified that the train was moving about three or four miles an hour. The fireman was looking ahead and ringing the bell. He, too, was looking ahead, and could see the track the distance of five or six car lengths ahead, except the track immediately in front of the engine, the view of which was cut off by the pump or the engine, and, at the rate the train was moving, he could have stopped within the distance of a car length. He was on the right-hand side of the cab, and did not see plaintiff's automobile, which approached from the other side, until after he struck it. The fireman ran to his side and said, "You hit an automobile," and he stopped, and asked plaintiff what the trouble was, and he replied, "I just didn't see you; I don't blame anybody at all." The curtains of the automobile were up.

The fireman testified that he was ringing the bell and looking ahead, but the rain and water on the glass of the cab window and curvature of the track prevented him from seeing very far--not more than half a car length--ahead of the engine, and he did not see plaintiff's automobile until the engine was about to strike it; heard plaintiff tell the engineer that he did not blame any one for the accident; that his curtains and wind shield were up, and it was raining, and he couldn't see them; he was sure the curtains were up, and he was ringing the bell.

Two other witnesses, employés of defendant, testified that plaintiff told them, a short time after the accident, on the same day, that he did not blame anybody for it; that it was raining, and he had his wind shield and curtains up, and did not see the train, until he was on the track. Plaintiff denied this, and denied telling the engineer so, and denied, also, that his curtains were up.

The jury viewed the scene of the accident, and, at request of defendant's attorneys, plaintiff got into an automobile and demonstrated, in presence of the jury, how he was driving at the time of the collision.

The first assignment of error is in the refusal of defendant's motion for a directed verdict. Was the evidence sufficient to warrant a reasonable jury in finding a verdict for plaintiff? This court has, time and again, laid down that as the test of the evidence or standard by which it must be considered in deciding motions for a nonsuit or directed verdict. This standard requires that verdicts must be supported by material evidence and be founded upon reason, and not upon surmise, conjecture, or caprice.

We consider, first, whether there was evidence which warranted a reasonable finding that defendant was guilty of recklessness willfulness, or wantonness, because, if there was...