Collins v. Atl. Coast Line R. Co, No. 14460.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtFISHBURNE
Citation190 S.E. 817
PartiesCOLLINS . v. ATLANTIC COAST LINE R. CO. et al.
Docket NumberNo. 14460.
Decision Date05 April 1937

190 S.E. 817

COLLINS .
v.
ATLANTIC COAST LINE R. CO. et al.

No. 14460.

Supreme Court of South Carolina.

April 5, 1937


[190 S.E. 817]

.

[190 S.E. 818]

Appeal from Common Pleas Circuit Court of Horry County; G. Duncan Bellinger, Judge.

Action by Malinda Collins, as administratrix of the estate of Sarah D. Anderson, deceased, against the Atlantic Coast Line Railroad Company and another. From the judgment, the named defendant appeals.

Affirmed.

M. C. Woods, of Marion, and Wright & Burroughs, of Conway, for appellant.

E. S. C. Baker and G. Lloyd Ford, both of Conway, and J. Coker Anderson, of Columbia, for respondent.

FISHBURNE, Justice.

The defendant, Atlantic Coast Line Railroad Company, owns and operates a branch railroad from its main line at Elrod, N. C, to Myrtle Beach, S. C. This branch line passes through Horry county, in this state, and therein intersects at right angles an unpaved public highway at a point known as Cebu crossing. Thomas A. Anderson and his wife, Sarah D. Anderson, an elderly couple, lived upon their farm approximately two miles east of this crossing.

On December 12, 1933, a short time before noon, Mr. and Mrs. Anderson, in a Ford sedan automobile, with Mrs. Anderson driving, proceeding westward from their home toward the railroad, entered upon the crossing at Cebu. While on the crossing, an unscheduled freight train of the defendant, designated as an extra special, and composed of the engine, tender, three cars, and the caboose, struck the automobile, as the result of which both were killed.

[190 S.E. 819]

This action was brought by the plaintiff, as administratrix of the estate of Sarah D. Anderson, against the Atlantic Coast Line Railroad Company and its Section master, A. L. Grainger, for damages, actual and punitive, for the alleged wrongful death of Sarah D. Anderson, for the benefit of her surviving heirs at law, under the provisions of section 412 of the Code of 1932.

The specifications of negligence and willfulness contained in the complaint fall into two general classes--those charged against the company and the section master as joint tort-feasors in failing to properly construct, repair, and keep in repair the roadbed and crossing, and to adequately maintain the railroad crossing; and failure to provide railroad crossing signs on the highway to warn travelers of the proximity of the crossing--and those charged against the company alone in its management and operation of the train on the day and at the time in question, in that, (a) the train was being run at a high, excessive, and dangerous rate of speed; (b) without any proper or adequate lookout, safeguards, and warnings; and (c) failing to give the statutory crossing signals.

The defendants denied generally the material allegations of the complaint, and alleged that the injuries sustained by the plaintiff's intestate were the result of her gross negligence and gross contributory negligence, in that she approached and attempted to pass over an open crossing, where she could have seen or heard the train in time to stop had she looked and listened, and that this alleged negligence on her part constituted the direct and proximate cause of her death.

The trial resulted in a verdict for the plaintiff against the defendant, Atlantic Coast Line Railroad Company, for actual and punitive damages. No verdict was rendered against its codefendant, A. L. Grainger, the section master.

The defendant railroad company appeals from the judgment entered below, and assigns error to the trial court for failure to grant its motions for nonsuit, for a mistrial, and for a directed verdict; the appeal also questions the correctness of certain portions of the trial judge's charge to the jury, and failure to instruct the jury in accordance with requests to charge. A motion was also made by the defendant company for a new trial, which was refused.

The motion made by the appellant for a nonsuit was based upon the sole ground that it appeared from the undisputed evidence that Sarah D. Anderson and Thomas A. Anderson were wife and husband; that both perished in a common tragedy, childless, and that the testimony did not show that Mrs. Anderson survived her husband, which was the theory upon which the action was brought. The plaintiff disclaimed that the action was brought upon this theory, and maintained that there was testimony offered by which it could reasonably be inferred that both Mr. and Mrs. Anderson died instantly, and at the same time, and that neither survived the other. In overruling the motion, the court held that it was reasonably inferable from the evidence that there was no survivorship, and that, if such was the case, the right of action would accrue on behalf of the heirs at law of Mrs. Anderson, because, if their deaths occurred at the same moment, it could not be said that a cause of action would accrue to Mr. Anderson as an heir at law of his wife, and that, therefore, the case at bar was brought for the benefit of the proper parties, to wit, the heirs at law and distributees of Mrs. Anderson.

The undisputed testimony is that, when the train collided with the automobile, Mrs. Anderson was driving the car, and her husband was sitting on the front seat at her right, from which direction the train approached. Their family physician, who reached the scene of the accident within a few minutes after the accident occurred, testified that both of them had received fatal injuries to the head. They were dead when he reached them, and he expressed the positive opinion that both died instantly, without any period of time intervening between their deaths. He predicated his opinion upon the condition of the bodies, the wounds they had sustained, their ages, their condition when living, and his knowledge of that condition known to him as their family physician. He expressed the belief that each died at the moment of the impact, and that neither survived the other.

The appellant contends that under the common law there is no presumption of survivorship, and, in support of the position that survivorship must be proved by the party who alleges it, they cite the cases of Pell v. Ball's Ex'rs, Cheves, Eq. 99, and Nolf et al. v. Patton et al., 114 S.C. 323, 103 S.E. 528. In the Pell Case, husband and wife were traveling on a steamer from Charles-

[190 S.E. 820]

ton to Savannah, and while at sea one of the boilers of the steamer exploded and both perished in the common tragedy. In the legal contest which followed, an action was brought in which it was alleged that Mrs. Ball survived Mr. Ball, her husband. The court held that the burden of proof of survivorship was on the heirs of Mrs. Ball, who asserted it. It appears from the evidence in that case that Mrs. Ball was seen and was heard to call loudly for her husband immediately after the explosion, but that he was neither seen nor heard thereafter. Upon this and other evidence in the case the court held that Mrs. Ball had survived her husband.

In Nolf v. Patton, supra, husband, wife, and baby, who were living in the same house, were all burned to death when the house was destroyed by fire. They were burned beyond recognition, but, on examination of the bodies, it was found that there was a wound on the head of the father which had the appearance of having been made by some blunt instrument, and a physician testified that in his opinion the wound was received before Mr. Nolf was burned. The court upheld the judgment, upon the ground that the evidence sustained the verdict of the jury, to the effect that Mr. Nolf died first.

It should be observed that the complaint in the case at bar contains no allegation of survivorship. On the contrary, the theory of the plaintiff's case is that there was no survivorship, but that both Mr. and Mrs. Anderson died at the same instant of time, and that, therefore, the heirs and distributees of Mrs. Anderson, as stated in the complaint, are the only survivors to take under the statute. The plaintiff neither alleges nor attempts to prove survivorship. It appears that the defendants are the persons who are asserting that Mr. Anderson survived his wife. The burden would, therefore, be upon them to prove that which they assert. The record discloses no such proof.

In Nolf v. Patton, supra, there was testimony on which survivorship could be determined, but in the instant case quite the contrary is true. There is no testimony that Mr. Anderson was living at any time after his wife's death. We see no error in the action of the trial judge in overruling the motion for a nonsuit.

The defendant moved upon two grounds for a directed verdict, contending that its affirmative defenses of gross negligence and gross contributory negligence on the part of plaintiffs intestate were established, and that the evidence in the case was susceptible of no other reasonable inference.

More than thirty witnesses were examined during the trial of this case. We also have the benefit of an elaborate map of the locus, which was introduced in evidence. It is not necessary to dwell at too great length upon the evidence, which was sharply conflicting upon the vital issues presented.

The road traveled by plaintiff's intestate leads toward the railroad crossing at Cebu in practically a straight line. As the automobile neared the crossing it passed first through a wooded area, then through a pasture on which there was undergrowth, but it is the contention of the defendant that, when it reached a point 237 feet from the crossing, the vision to the right, from which direction the train approached, was not obstructed by any physical objects, and that, if the driver of the car had looked, she could have seen the oncoming train a distance of several hundred feet--certainly in time for her to have stopped the automobile before it reached the crossing.

The testimony for the plaintiff tended to show that the statutory crossing signals were not given; that it was a cloudy, overcast day, and that the approaching train...

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12 practice notes
  • State v. Moorer, No. 18016
    • United States
    • United States State Supreme Court of South Carolina
    • January 21, 1963
    ...197 S.C. 109, 14 S.E.2d 582; Huggins v. Broom et al., 189 S.C. 15, 199 S.E. 903; Collins v. Atlantic Coast Line R. Co., 183 S.C. 284, 190 S.E. 817; and unless it is shown that there has been an abuse of discretion, this Court will not disturb the trial Judge's ruling. By permitting the doct......
  • Haselden v. Atl. Coast Line R. Co, No. 16203.
    • United States
    • United States State Supreme Court of South Carolina
    • April 1, 1949
    ...latter course of action does not ordinarily furnish any ground for reversal. Collins v. Atlantic Coast Line R. Co., supra [183 S.C. 284, 190 S.E. 817]; * * *. Necessarily, each case must be judged on its own facts and circumstances. There can be no misconduct in asking a question, the propr......
  • Roberts v. Koons, No. 45341.
    • United States
    • United States State Supreme Court of Iowa
    • March 18, 1941
    ...of arriving at a correct judgment without the assistance of such opinion. See Collins v. Atlantic Coast Line R. Co., 183 S.C. 284, 190 S.E. 817. But in any case such witness should be qualified and the facts upon which he bases his opinion should be sufficient to enable a witness so qualifi......
  • Johnson v. Charleston & W. C. Ry. Co., No. 17537
    • United States
    • United States State Supreme Court of South Carolina
    • May 19, 1959
    ...S.E. 289; Price v. American Agricultural Chemical Co., 178 S.C. 217, 182 S.E. 637; Collins v. Atlantic Coast Line R. Co., 183 S.C. 284, 190 S.E. 817; Bowers v. Charleston & W. C. Ry. Co., 210 S.C. 367, 42 S.E.2d 705. The reason for such a rule is obvious; its propreity is emphasized where c......
  • Request a trial to view additional results
12 cases
  • State v. Moorer, No. 18016
    • United States
    • United States State Supreme Court of South Carolina
    • January 21, 1963
    ...197 S.C. 109, 14 S.E.2d 582; Huggins v. Broom et al., 189 S.C. 15, 199 S.E. 903; Collins v. Atlantic Coast Line R. Co., 183 S.C. 284, 190 S.E. 817; and unless it is shown that there has been an abuse of discretion, this Court will not disturb the trial Judge's ruling. By permitting the doct......
  • Haselden v. Atl. Coast Line R. Co, No. 16203.
    • United States
    • United States State Supreme Court of South Carolina
    • April 1, 1949
    ...latter course of action does not ordinarily furnish any ground for reversal. Collins v. Atlantic Coast Line R. Co., supra [183 S.C. 284, 190 S.E. 817]; * * *. Necessarily, each case must be judged on its own facts and circumstances. There can be no misconduct in asking a question, the propr......
  • Roberts v. Koons, No. 45341.
    • United States
    • United States State Supreme Court of Iowa
    • March 18, 1941
    ...of arriving at a correct judgment without the assistance of such opinion. See Collins v. Atlantic Coast Line R. Co., 183 S.C. 284, 190 S.E. 817. But in any case such witness should be qualified and the facts upon which he bases his opinion should be sufficient to enable a witness so qualifi......
  • Johnson v. Charleston & W. C. Ry. Co., No. 17537
    • United States
    • United States State Supreme Court of South Carolina
    • May 19, 1959
    ...S.E. 289; Price v. American Agricultural Chemical Co., 178 S.C. 217, 182 S.E. 637; Collins v. Atlantic Coast Line R. Co., 183 S.C. 284, 190 S.E. 817; Bowers v. Charleston & W. C. Ry. Co., 210 S.C. 367, 42 S.E.2d 705. The reason for such a rule is obvious; its propreity is emphasized where c......
  • Request a trial to view additional results

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