Carter v. Peace
| Decision Date | 15 May 1956 |
| Docket Number | No. 17160,17160 |
| Court | South Carolina Supreme Court |
| Parties | James H. CARTER, Administrator of the Estate of Herbert John DeRyder, Deceased, Respondent, v. W. F. PEACE and Seaboard Air Line Railway, a Corporation, of whom the latter is, Appellant. |
Smith & Moore, C. C. Grimes, Jr., Georgetown, Paulling & James, Darlington, for appellant.
Thompson & Poteat, Rosen & Rosen, James B. Morrison, Georgetown, for respondent.
Plaintiff's intestate, who was a seventeen-year-old New Jersey boy en route to Florida, suffered injuries from which he died in a few hours, when his 1950 Ford automobile in which he was traveling collided with a train of appellant at a highway grade crossing of the railroad in a rural section of Georgetown County. The automobile struck the side of the diesel locomotive about twenty-five feet from the front of the locomotive, behind the cab of it. There was another youth in the automobile, who was killed instantly. The evidence is rather conclusive that plaintiff's intestate was driving the automobile, as to which there is no question in the appeal; the collision was of such force that it was demolished, and the locomotive was badly damaged and its airbrake and fuel systems put out of commission. The accident occurred at about three o'clock in the afternoon during rain which was accompanied by thunder and lightning.
There were no eyewitnesses who testified other than members of the train crew, except the occupant of another automobile which was about a half mile behind the automobile of decedent; he testified that he saw the brake lights of the latter go on, quoting from his testimony, 'just before it ran into the train.' A nearby resident heard the crash and he and his wife promptly went to the scene.
This action for damages for alleged wrongful death was brought against the appellant railroad company and its engineer who was operating the locomotive. It was alleged in the complaint that the collision was caused by one or more of the following concurring acts or omissions of the defendants: (a) the engineer-defendant was operating the locomotive at an excessive rate of speed under the existing conditions; (b) the defendants failed to maintain a proper lookout for highway travelers; (c) the engineer failed to keep the locomotive under proper control under the conditions; (d) he was operating the locomotive at an excessive rate of speed over the U. S. Highway which was much used by nonresidents, unfamiliar with the grade crossing; (e) the locomotive was equipped with improper brakes or the engineer failed to properly apply them; (f) the defendants failed to provide a sufficient train crew; (g) the defendants failed to provide adequate signals and devices to warn highway travelers of the approach of the train, under the conditions; (h) the railroad company failed to keep unobstructed the area contiguous to the crossing, whereby visibility of it was impaired; and (i) the defendants failed to comply with section 58-743 of the Code of 1952 requiring bell or whistle signals at grade crossings.
The answer contained a general denial of the material allegations of the complaint and a plea of contributory negligence, recklessness and wilfulness, in specified particulars, of the driver of the automobile.
At the conclusion of the evidence the defendants moved for direction of verdict upon grounds which included contributory negligence; and upon denial of that motion, separately moved for withdrawal from the jury of certain of the specifications of negligence for lack of evidentiary support. The latter motion was granted only with respect to specification (f), which alleged an insufficient train crew, and that part of (e) alleging improper brakes.
The jury returned verdict for plaintiff for actual and punitive damages against the railroad company alone, thus acquitting the engineer-defendant of negligence, etc. On that ground, and others, the defendant railroad company moved for judgment notwithstanding the verdict. The motion was refused upon the conclusion that while the verdict discharged the company on the issues of speed and failure to give the statutory crossing signals, there remained specifications (b), (g) and (h). The court construed (b) to include the failure to keep a proper lookout through the agency of someone, in addition to the train crew, at the crossing; and (g) to charge negligence in the failure to maintain adequate warning signals and devices at the crossing; and (h) to include area without the right of way, and it was held that while the company did not have the right to remove obstructions outside of its right of way, the existence of them required it, quoting from the order, 'to take such steps as may be necessary to warn the traveling public of the existence of the obstructed crossing by reason of the very fact that the obstructions are without the right of way.'
The evidence of the crossing signals was in conflict, whereby motion to direct the verdict was rightly refused. However, it being the duty of the engineer to give the statutory signals, which he testified that he did, the effect of the verdict in his favor was to establish that they were properly given. Similar observation is applicable to the other specifications of alleged negligence on his part, such as the speed of the train, his lookout, etc. It was alleged in the complaint that he was operating the locomotive, and the evidence so established and that he was the sole occupant of it.
In view of this result of the verdict, it is easily seen from consideration of all of the evidence, that there was none to support the finding of recklessness, wilfulness or wantonness, which was implicit in the verdict for punitive damages. The statutory, Code Sec. 58-999, requirement of signs at the crossing was fully met; there were two cross-arm crossing signs which the photographs in evidence show were clearly visible. In addition, about four hundred feet from the crossing, as decedent approached it, there was a State Highway sign warning of the railroad crossing. The speed of the train was about forty-five miles per hour, which it is not contended was in violation of any applicable statute or regulation.
In the absence of wilfulness and wantonness in the conduct of appellant, contributory negligence was a defense to the liability of the company for any alleged negligence which the jury may have found.
The only reasonable inference from consideration of all of the evidence is that contributory negligence was a proximate cause of the collision. There were obstructions on land adjacent to the right of way, including an oak tree and smaller growth, but the right of way was clear of obstruction and when the decedent reached a point abreast of the tree, on his left, which was thirty-two feet from the center line of the highway, he was sixty-three feet from the track on which...
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