Chisolm v. Seaboard Air Line Ry.

• Decision Date: 12 October 1922
• Docket Number: 11033.
• Parties: CHISOLM v. SEABOARD AIR LINE RY.
• Court: South Carolina Supreme Court

114 S.E. 500

121 S.C. 394

CHISOLM v. SEABOARD AIR LINE RY.

No. 11033.

Supreme Court of South Carolina

October 12, 1922

Appeal from Common Pleas Circuit Court of Hampton County; George E Prince, 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 on 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 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 was the failure to give this reasonable and adequate warning. Since it is alleged that this delict was wanton and willful, and the verdict of the jury was a general one, it must further be assumed, if necessary to support the verdict, that the jury found the defendant guilty of willfulness in so failing to discharge its duty. Callison v. Railway Co., 106 S.C. 123, 90 S.E. 260. The exceptions do not directly make the point that there was no evidence to support a finding of willfulness. We deem it proper to say in passing, however, that the testimony to the effect that the signals were not given, that the fireman of No. 1 saw the intestate approaching the track, not looking toward the fireman's train but toward the train in front of him, and that the trainmen on No. 2 realized the intestate's peril when he was 20 to 40 feet away from the track, was sufficient to require the submission of the issue of willfulness to the jury. The inquiry must therefore proceed upon the hypothesis that there was a willful or wanton disregard of the duty owed by defendant to give due and timely warning of the approach of train No. 1 to a public crossing.

If the injury was caused by a willful or wanton delict, under the well-settled rule, contributory negligence is not a defense. Contributory negligence as a ground for the nonsuit or the directed verdict must therefore go out of the case. Callison v. Railway Co., supra. Defendant's contentions are thus resolved into the alternative propositions: (1) That the sole proximate cause of the injury was the negligence of the intestate; or (2) that the willful or wanton misconduct of the intestate, combining and concurring with the willful default of the defendant contributed to the injury as a proximate cause. Spillers v. Griffin, 109 S.C. 78, 95 S.E. 133, L. R. A. 1918D, 1193. See note to this case, L. R. A. 1918D, 1195, as to contributory willfulness.

As pertinent to the solution of the questions thus presented, certain of the mutual and reciprocal rights and duties of railroads and travelers upon public crossings may be broadly stated in the form of general rules as follows:

1. A railroad grade crossing is in itself a warning of danger both to employés of the railroad in charge of trains and to travelers upon the highway; but, since a railroad train by reason of its character and momentum and the requirements of public travel by means thereof has the right of way at such crossings, it is the common-law duty of the railroad company to give such signals as may be reasonably sufficient, in view of the situation and surroundings, "to put individuals using the highway on their guard." Murray v. Railroad Co., 10 Rich. 232, 70 Am. Dec. 219; Kaminitsky v. Railroad Co., 25 S.C. 61; Hutto v. Railroad Co., 61 S.C. 495, 39 S.E. 710.

2. A railroad company and a traveler on a highway crossing are charged with a mutual duty of keeping a lookout for danger and the degree of vigilance required of both is in proportion to the known risk; the greater the danger, the greater the care required of both. Edwards v. Railway, 63 S.C. 288, 41 S.E. 458; Johnson v. S. A. L. Ry. Co. , 163 N.C. 431,...