Chisolm v. Seabd. Air Line Ry, (No. 11033.)

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtMARION
Citation114 S.E. 500
Decision Date12 October 1922
Docket Number(No. 11033.)
PartiesCHISOLM. v. SEABOARD AIR LINE RY.

114 S.E. 500

CHISOLM.
v.
SEABOARD AIR LINE RY.

(No. 11033.)

Supreme Court of South Carolina.

Oct. 12, 1922.


[114 S.E. 501]

Appeal from Common Pleas Circuit Court of Hampton County; George E. Prinoe, Judge.

Action by Milton M. Chisolm, as administrator of J. W. Walker, deceased, against the Seaboard Air Line Railway. From a judgment for plaintiff, defendant appeals. Affirmed.

Randolph Murdaugh, of Hampton, and Harley & Blatt, of Barnwell, for appellant.

George Warren and H. O. Hanna, both of Hampton, for respondent

MARION, J. The plaintiff recovered a verdict, for $5,000 in an action for damages oh account of the alleged wrongful death of his intestate at a crossing near the defendant's depot in the town of Estill. The defendant appeals upon three exceptions which assign error in the refusal of motions for a nonsuit, for a directed verdict and for a new trial, based upon the ground that the evidence was susceptible of no other reasonable inference than that the death of plaintiff's intestate was proximately caused by his own negligence, gross negligence, and willfulness. The sole question raised by the appeal is whether the circuit judge erred as a matter of law in not granting the motions upon the ground stated.

The facts, which disclose the setting and form the basis of the controversy, stated as to all points in dispute most favorably to plaintiff, are as follows: About 2:30 o'clock in the afternoon of November 4, 1920, plaintiff's intestate, J. W. Walker, a man of impaired hearing, about 58 years of age, walking from his home on one side of defendant's tracks to his store on the other, was struck and killed by one of defendant's passenger trains at a point where a traveled way crosses the tracks of the railroad company near the ticket office and waiting room at the north end of defendant's depot in the town of Estill. The depot is on the west side of three parallel tracks running north and south. About 150 feet to the east is a sidewalk or street parallel with the tracks. From this sidewalk on the east a path or walkway leads in a diagonal southwesterly direction a distance of about-200 feet, to the railroad, crosses the three tracks and leads thence to a street upon the west side. The path is the way of ingress to and egress from the depot, and had been in use by the public for at least 7 years. One hundred and seventy-five feet to the north of this path is a street crossing, and 290 feet to the south, another street crossing. Approaching from the east the first track is the main line, the next a passing track, and the third a house track. Mr. Walker, the intestate, a resident merchant familiar with the location, approached the railroad along the diagonal path from the east side, his face toward the southwest. As he thus approached two of defendant's passenger trains, No. 2, going north and No. 1, going south, were also approaching the crossing. On the diagonal path facing toward the southwest, the intestate was in position to see the train No. 2 coming from the south, which was almost directly in his line of vision, as it pulled in, slowed down, and stopped at the station with

[114 S.E. 502]

bell ringing and steam escaping. Just about the time that train stopped, the intestate stepped from the path upon the main line track, and was struck by train No. 1 coming from the north, somewhat to the right and rear of the intestate's line of advance, and running at a speed of 25 miles per hour. Just before intestate stepped upon the track, and when he was from 20 to 40 feet away from the track, the conductor, engineer, and express messenger on the slowly moving or standing train No. 2, shouted and waived to him. A young lady on the ground near by also called to the intestate. According to the engineer of train No. 2, the intestate was looking at his train. The fireman on train No. 1 saw the intestate approaching the track, that there was another train in front of him. and that he did not look toward the advancing No. 1. It is undisputed that after the fireman saw the intestate no whistle alarm was sounded for the purpose of warning him. There was testimony on behalf of plaintiff by persons in position to hear that no warning by bell or whistle of the approach of train No. 1 was heard. The regular passing point of these trains was Scotia, five or six miles from Estill. It is undisputed that at any point on the diagonal path for a distance of 200 feet the intestate by looking to the right could have seen a train approaching on the main line from the north, in which direction there was an open, unobstructed view for at least 859 feet, and that by looking in that direction the intestate could have seen the train that struck him in ample time to avoid injury.

The plaintiff's cause of action was predicated upon alleged negligence and willfulness of the defendant in operating train No. 1 at an excessive rate of speed, in creating a dangerous condition by causing two trains running in opposite directions to pass the crossing practically at the same time, and in failing to give due and timely warning by signal of the approach to the crossing of the train that struck the intestate. It does not appear from the record that the crossing involved was upon such a highway, street, or traveled place within the terms and meaning of section 3222, Civil Code 1912, as imposed upon the railroad the duty of giving the signals by bell or whistle required by the statute. Sanders v. Railway Co., 97 S. C. 423, 81 S. E. 786. But there was evidence tending to establish that it was such a public crossing, existing by leave and license of the defendant, as imposed upon the defendant the common-law duty of exercising due care to give reasonable warning by signal of the approach of trains. As there was testimony tending to prove that no warning by signal was given of the approach of the train that killed intestate, sufficient to require the submission of that issue to the jury, it will be assumed, for the purposes of this appeal, that the substantial delict of the defendant...

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53 practice notes
  • Key v. Carolina & N. W. Ry. Co, No. 13112.
    • United States
    • United States State Supreme Court of South Carolina
    • April 9, 1931
    ...requirements." The charge given is sustained by the declaration of this court in Chisolm[162 S.E. 584]v. Railroad Company, 121 S. C. 394, 114 S. E. 500, 502. In that case, this was said: "The inquiry must therefore proceed upon the hypothesis that there was a willful or wanton disregard of ......
  • Ford v. Atl. Coast Line R. Co, No. 13405.
    • United States
    • South Carolina Supreme Court
    • May 11, 1932
    ...v. Atlantic Coast Line Railroad Company, 72 S. C. 389, 392, 51 S. E. 988; Chisolm v. S. A. L. Railway Company, 121 S. C. 394, 402, 114 S. E. 500. It may also be proper to observe at this time and in this connection that the courts of this state, except, of course, when federal questions are......
  • Young v. Price, No. 4250
    • United States
    • Hawaii Supreme Court
    • December 9, 1963
    ...which would distract or divert the attention of a reasonably prudent person. In Chisolm v. Seaboard Air Line Ry., 121 S.C. 394, 114 S.E. 500, where the pedestrian was hit by defendant's train, the court applied the same exception. And the same was true in Northern Pac. R. Co. v. Everett, 15......
  • Miller v. Atl. Coast Line R. Co, (No. 12063.)
    • United States
    • United States State Supreme Court of South Carolina
    • September 10, 1926
    ...guard them against danger. Callison v. C. & W. C. R. Co., 106 S. C. 131, 132, 90 S. E. 260; Chisolm v. S. A. L. R. Co., 121 S. C. 401, 114 S. E. 500(7); McAllister v. C. & O. R. Co., 243 U. S. 308, 7 S. Ct. 274, 61 L. Ed. 740; Chicago, R. I. & P. Ry. Co. v. Sharp, 63 F. 532, 11 C. C. A. 338......
  • Request a trial to view additional results
53 cases
  • Key v. Carolina & N. W. Ry. Co, No. 13112.
    • United States
    • United States State Supreme Court of South Carolina
    • April 9, 1931
    ...requirements." The charge given is sustained by the declaration of this court in Chisolm[162 S.E. 584]v. Railroad Company, 121 S. C. 394, 114 S. E. 500, 502. In that case, this was said: "The inquiry must therefore proceed upon the hypothesis that there was a willful or wanton disregard of ......
  • Ford v. Atl. Coast Line R. Co, No. 13405.
    • United States
    • South Carolina Supreme Court
    • May 11, 1932
    ...v. Atlantic Coast Line Railroad Company, 72 S. C. 389, 392, 51 S. E. 988; Chisolm v. S. A. L. Railway Company, 121 S. C. 394, 402, 114 S. E. 500. It may also be proper to observe at this time and in this connection that the courts of this state, except, of course, when federal questions are......
  • Young v. Price, No. 4250
    • United States
    • Hawaii Supreme Court
    • December 9, 1963
    ...which would distract or divert the attention of a reasonably prudent person. In Chisolm v. Seaboard Air Line Ry., 121 S.C. 394, 114 S.E. 500, where the pedestrian was hit by defendant's train, the court applied the same exception. And the same was true in Northern Pac. R. Co. v. Everett, 15......
  • Miller v. Atl. Coast Line R. Co, (No. 12063.)
    • United States
    • United States State Supreme Court of South Carolina
    • September 10, 1926
    ...guard them against danger. Callison v. C. & W. C. R. Co., 106 S. C. 131, 132, 90 S. E. 260; Chisolm v. S. A. L. R. Co., 121 S. C. 401, 114 S. E. 500(7); McAllister v. C. & O. R. Co., 243 U. S. 308, 7 S. Ct. 274, 61 L. Ed. 740; Chicago, R. I. & P. Ry. Co. v. Sharp, 63 F. 532, 11 C. C. A. 338......
  • Request a trial to view additional results

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