Carroll v. United States

• Decision Date: 21 December 1949
• Docket Number: Civ. A. No. 979.
• Citation: 87 F. Supp. 721
• Court: U.S. District Court — District of South Carolina
• Parties: CARROLL v. UNITED STATES.

87 F. Supp. 721

CARROLL v. UNITED STATES.

Civ. A. No. 979.

United States District Court W. D. South Carolina, W. D.

December 21, 1949.

William I. Bouton, Greenville, S. C., for plaintiff.

Oscar H. Doyle, U.S. Atty., Anderson, S. C., Walter H. Hood, Asst. U.S. Atty., Greenville, C. S., for defendant.

WYCHE, Chief Judge.

In this action plaintiff seeks recovery of $1,000 from the United States under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1291, 1346, 1402, 1504, 2110, 2401, 2402, 2411, 2412, 2671-2680, for damages to his automobile, resulting from a collision with a diesel-electric locomotive of the defendant at a place where the highway crosses defendant's railroad.

I viewed the scene of the collision and the approaches to it, with the consent, and in the presence of counsel for both parties, after having heard the testimony.

In compliance with Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S. C.A., I find the facts specially and state my conclusions of law thereon, in the above cause, as follows:

Findings of Fact

At about 3:30 o'clock p. m. on August 17, 1948, plaintiff's wife was driving his 1934 Ford Coach automobile, with her small child and young brother-in-law on the seat beside her, on an unimproved public road in Greenville County, South Carolina. The road was rough with deep ruts. It crosses the railway of the defendant at approximately right angles. Defendant's railroad runs from its railroad at the Greenville Air Base to Gantt Station, a junction point with a line of the Southern Railway Company, in a rural section for a distance of about six miles. Mrs. Carroll was using the car with her husband's consent and permission and for a family purpose. Plaintiff and his family lived about one mile from the scene of the collision, and plaintiff's wife was thoroughly familiar with the crossing at which the collision occurred. She had driven over it a number of times. Crossing railway signs, visible for a considerable distance, were erected on both sides of the railroad tracks.

Defendant's locomotive was electrically propelled. On the day of the collision it was being operated by its civilian employee, Noah E. George, while acting in the scope of his employment in returning to the Air Base from Gantt Station at the junction with the Southern Railway, and was pulling no cars at the time. Defendant's engineer, from his cab, while at a distance of about six hundred feet from the crossing, saw plaintiff's car approaching at a slow speed. The engineer did not sound the whistle or ring the bell, with which the locomotive was equipped, at a distance of at least five hundred yards from the crossing, but sounded the whistle a few seconds before the collision when he saw that plaintiff's wife was not going to stop for the crossing. Mrs. Carroll approached the crossing at a speed of about fifteen to twenty miles per hour, and did not see the locomotive until she was only "a few feet" from the track, at which time, in an effort to avoid a collision, she turned the automobile toward her left, the direction from which the locomotive was coming, but so closely to the track that the steps on the right side of the locomotive struck the automobile, turning it back toward the right against the railway crossing sign. The car was knocked into the ditch, breaking the railway crossing sign. The occupants of the car were not injured. The defendant's locomotive was equipped with a governor which would not permit it to travel in excess of twenty miles per hour and it was traveling at a speed of twenty miles an hour when it came to the crossing. While at a considerable distance back down the road on which plaintiff's automobile was traveling, the driver's view to the left, from which the locomotive was approaching, was obstructed on the left side of the road by a bank and by weeds and peas growing in the fields. After passing such obstructions there was at least seventy feet from the crossing an unobstructed view for plaintiff's wife to have seen the approaching locomotive and to have brought the automobile to a stop before reaching the tracks of the defendant.

The plaintiff paid $300 for his automobile and after the collision was offered $40 for the salvage of the car. He paid wrecker and storage charges on the car in the amount of $27.50.

On September 9, 1948, the plaintiff filed with the War Department a claim for property damage to his automobile in the amount of $337.73, and on the 29th day of December, 1948, this claim was rejected and plaintiff was notified in writing of such rejection. Plaintiff instituted this action for the sum of $1,000. The complaint did not allege, nor was there any proof of, intervening facts relating to the amount of the claim, which was solely for the damage to plaintiff's automobile. Plaintiff did not present at the trial any evidence as to the amount of his claim which could not reasonably have been discovered at the time he presented his claim to the War Department.

Conclusions of Law

Section 8354, Code of Laws of South Carolina 1942, is as follows: "Lines of two steam railroads crossing — when trains stop. — Whenever lines of two steam railroads cross each other on the same grade in this State, the trains shall be brought to a full stop before reaching the crossing: provided, that this section shall not apply where the crossing is equipped with interlocking devices, or signal lights, or semaphores or other safety appliances which shall indicate that the train may cross in safety, or where a flagman or watchman is stationed at the crossing and he signals that the train may cross in safety."

Section 8355, Code of Laws of South Carolina 1942, referring to signals to be given at railroad crossings is as follows: "Signals to be given at crossings. — A bell of at least thirty pounds weight and a steam or air whistle shall be placed on each locomotive engine or interurban car, and such bell shall be rung or such whistle sounded by the engineer or fireman or motorman at the distance of at least five hundred yards from the place where the railroad crosses any public highway or street or traveled place, and be kept ringing or whistling until the engine or interurban car has crossed such highway or street or traveled place; and if such engine or car shall be at a stand-still within less distance than one hundred rods of such crossing such bell shall be rung or such whistle sounded for at least thirty seconds before such engine or interurban cars shall be moved, and shall be kept ringing or sounding until such engine or interurban cars shall have crossed such public highway or street or traveled place: provided, that a gong of not less than ten inches in diameter may be placed upon interurban cars in lieu of a bell as herein required and shall be sounded as herein provided."

Section 8377, Code of Laws of South Carolina 1942, describes the consequences for neglect to give signals required by Section 8355, and is as follows: "Injuries at crossings — penalty and damages. — If a person is injured in his person or property by collision with the engines or any car or cars of a railroad corporation at a crossing, and it appears that the corporation neglected to give the signals required by this chapter, and that such neglect contributed to the injury, the corporation shall be liable for all damages caused by the collision, or to a fine recoverable by indictment, as provided in the preceding section, unless it is shown that in addition to a mere want of ordinary care the person injured, or the person having charge of his person or property, was at the time of the collision guilty of gross or wilful negligence, or was acting in violation of the law, and that such gross wilful negligence or unlawful act contributed to the injury."

Section 8254, Code of Laws of South Carolina 1942, purports to give certain definitions and to whom applicable, and is as follows: "Definition of terms — to whom applicable. — In the construction of this chapter, except where such meaning would be repugnant to the context or contrary to the manifest intention of the Legislature, the phrase `railroads and railways' shall be construed to include all railroads and railways operated by steam, except marine railways doing business as common carriers in this State, and whether operated by the corporations owning them or by other corporations or otherwise; `railroad' shall be construed to mean a railroad or railway operated by steam power. The terms `railroad corporation' or `railroad company' contained in the law of this State shall be deemed and taken to mean all corporations, companies or individuals now owning or operating, or which may hereafter own or operate, any railroad, in whole or in part in this State, and the provisions of this law shall apply to all persons, firms and companies, and to all associations as common carriers upon any of the lines of railroads in this State (street railways and express companies excepted), the same as to railroad corporations hereinafter mentioned."

Section 7747, Code of Laws of South Carolina 1942, relating to certain powers of business corporations to construct and operate a railroad, electric railway, tramway, turnpike or canal for their own use and purposes, is as follows: "Additional powers. — Corporations organized for any purpose under the provisions of this article shall have power to construct and operate a railroad, electric railway, tramway, turnpike or canal for their own use and purposes, and shall have the right to effect a crossing with any existing railroad or public roads as is now provided by law for railroad corporations; but they shall have no power to condemn lands except for crossing any existing railroad or public road, as herein provided." (Emphasis added.)

Section 8482, Code of Laws of South Carolina 1942, defines an interurban railway as follows: "* * * the phrases `interurban railroad' or `interurban railway' shall be construed to include all...