Crapse v. Southern Ry. Co.

• Decision Date: 31 August 1942
• Docket Number: 15452.
• Citation: 21 S.E.2d 737,201 S.C. 176
• Parties: CRAPSE v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

21 S.E.2d 737

201 S.C. 176

CRAPSE v. SOUTHERN RY. CO.

No. 15452.

Supreme Court of South Carolina

August 31, 1942

Murdaugh & Murdaugh, of Hampton, for appellant.

J W. Manuel, of Hampton, and Tompkins & Tompkins, of Columbia, for respondent.

STUKES Justice.

Appellant brought this action for damages for personal injuries received by her on the Sunday night of May 25th, 1941, while riding in an automobile, the property of another occupant of the car but operated by still another, characterized by the testimony a good and experienced driver, and there is no evidence of control or direction of him by appellant.

It was alleged in the complaint that they reached a grade crossing of defendant's railroad over a paved state highway at about nine P. M., that the crossing was blocked by a train in such manner that lights on automobiles approaching from the opposite direction were visible through the railway car creating a dangerous condition by decreasing the visibility of the blocked crossing, and that plaintiff and the driver of the automobile could not see the condition until within a few feet, whereupon the automobile was turned sharply to avoid a collision and overturned, whereby the injuries were received.

Negligence, gross negligence, willfulness and wantonness were charged against the defendant, its agents and employees, in various particulars, including the obstruction of the crossing for an unreasonable time in violation of statute, that such was done at night without precautions light, sign, signal or flagging, and in such manner that lights from automobiles on the highway shone through the train cars, as above mentioned. The answer contained a limited (by admissions) denial and the defense of contributory negligence and willfulness, including excessive speed and lack of all care; and the answer set up joint enterprise between plaintiff and the driver of the automobile.

Trial was entered upon at the February, 1942, term of the Court of Common Pleas for Hampton County and at the conclusion of the evidence for the plaintiff the defendant moved for a nonsuit upon the grounds that the evidence was susceptible of reasonable inferences only that (1) there was no negligence or willfulness of the defendant which caused plaintiff's injuries, (2) that such injuries were caused by the gross contributory negligence and willfulness of the plaintiff and the driver of the automobile, specifying speed and failure to look and listen and keep the car under control, and (3) that the plaintiff and the driver and the other occupants of the car were engaged in a common enterprise and that the injuries to plaintiff were caused by the gross contributory negligence and willfulness of the driver in relation to the speed of the automobile and his failure to keep it under control or to take any precautions for the safety of himself and the other occupants of the car.

The motion was granted and nonsuit ordered and a formal order was thereafter entered wherein the rule was correctly stated that in the consideration of such motion the evidence must be viewed in the most favorable light to plaintiff, but in our opinion it was not applied with accuracy; and it was held that the evidence established that plaintiff and the driver of the automobile in which she rode were engaged in a common enterprise and the driver's negligence, found to have been established in a gross degree was imputable to the plaintiff, and it was further held that even if there were no common enterprise "the plaintiff herself was guilty of gross contributory negligence, which bars her right to any recovery. She had the same opportunity to look out for the train that the driver had, and warn him of its presence, and she could have seen but she did not even look." And as if to add in full measure, it was finally found in the order that no negligence on the part of the defendant had been shown, that there was no proof that the defendant was negligent in allowing the crossing to be obstructed. This appeal is from the order of nonsuit and appropriate exceptions raise the question of its propriety.

The nature of the contest requires reference in some detail to the testimony, but in view of our conclusion a new trial will be necessary, for which reason no opinion is expressed of the strength or conviction of it other than is considered essential for the purpose of the decision.

The driver of the automobile, Jack Coxwell, and plaintiff testified that the latter had been on an extended visit to her married sister in Varnville where the driver and the other occupants, all inferably young men, lived. The latter planned to attend the commencement sermon in connection with the graduation exercises of the Estill High School and plaintiff asked them to take her to her home which was on their way to Estill, near the village of Lena. But when they arrived at her home all had left to attend the service and plaintiff asked the young men to take her on to Estill where she hoped to find her parents. Although plaintiff's sister was in the graduating class, she (plaintiff) did not expect to attend the services and was not dressed for the occasion. They went on to Estill where one of the young men tried to enter the school building where the exercises were in progress, but was unable to do so because of the crowd, and all awaited the conclusion in an effort to find plaintiff's parents, which they failed to do. Thereupon plaintiff accepted the offer of the others to take her home as they returned to Varnville and they set out from Estill for that purpose, in the course of which the grade crossing referred to had to be passed.

Coxwell, the driver of the automobile, testified that it was a dark and foggy night and that upon approaching the crossing, with which he was familiar only to the extent of having used it two or three times before, he rounded a curve and some four or five hundred feet distant saw a single light, which he took to be the headlight of an approaching automobile (and the evidence later referred to bears him out), and dimmed his lights (focused them down), which he testified without objection was required by law, and saw no obstruction of the highway until about eighty or ninety feet away when he turned on his bright lights and made out on the railroad tracks what looked to him like a black, unlighted coal or tank car, through, over or under which he had seen the light of the other automobile. Thereupon he applied his brakes as quickly as possible and turned the car sharply so that the imminent collision was avoided, but the car was ditched six or eight feet from the railroad and would have turned over had it not struck a post. He said that he was driving carefully at from forty to fifty miles an hour, that the automobile, brakes, etc., were in good condition and that he was keeping a proper lookout. He testified, as did plaintiff, that about the time the obstruction of the highway was discernible, he saw someone with a light at the edge of the crossing, but that he ran away as the automobile approached. This witness further testified to an experiment by him with an automobile at the scene of the wreck shortly before the trial, the result of which bore out his testimony of the circumstances and the poor visibility of a train across the highway.

The operator of the other automobile referred to above testified; he was a deputy sheriff of Barnwell County on his way to a fishing resort. He said that his automobile, including the lights, was in good condition and that as he approached the railroad crossing he saw an automobile light (which it is fairly inferable from the evidence was the light of the car in which plaintiff was riding); that there was no flagman or other warning of the obstruction of the highway and that he drove within forty feet before he was conscious of it, applied his brakes and his car came to a stop on one of the three tracks and within fifteen feet of a collision which would have occurred except for his ability to turn to the right. There was no ditch on his side of the crossing, as there was on plaintiff's.

The testimony of the plaintiff, already alluded to above, is interesting and important in the controversy. She said that she was riding on the front seat of the automobile with the driver and looked when they turned the curve and saw the light ...