Curry v. United States, Civ. A. 1370.

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Citation129 F. Supp. 38
Decision Date20 January 1954
Docket NumberCiv. A. 1370.
PartiesClark W. CURRY v. The UNITED STATES of America.

129 F. Supp. 38

Clark W. CURRY
v.
The UNITED STATES of America.

Civ. A. 1370.

United States District Court, W. D. South Carolina, Greenville Division.

January 20, 1954.


129 F. Supp. 39
COPYRIGHT MATERIAL OMITTED
129 F. Supp. 40
Price & Poag, Leatherwood, Walker, Todd & Mann, Greenville, S. C., for plaintiff

John C. Williams, U. S. Atty., Chester D. Ward, Jr., Asst. U. S. Atty., Greenville, S. C., for defendant.

WILLIAMS, District Judge.

In this action plaintiff seeks to recover Fifty Thousand ($50,000) Dollars from the United States under the Federal Tort Claims Act, 28 U.S.C.A. § 2674, for damages to his automobile and injuries to himself resulting from a collision with a diesel-electric locomotive of the defendant at a place where the highway crosses defendant's railroad.

After hearing the testimony, with the consent and in the presence of counsel for both parties, I viewed the scene of the accident and the approaches to it at the same time of night the accident was alleged to have occurred.

In compliance with Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., I find the facts specially and state my conclusions of law thereon as follows:

Findings of Fact

On the evening of October 29, 1951, at about 8:30 plaintiff was driving along U. S. Highway No. 25 in his 1950 Studebaker automobile approximately seven miles south of Greenville, S. C. in the direction of Greenwood, S. C. This highway, commonly referred to as Augusta Road, is a heavily traveled public highway of the State of South Carolina. Plaintiff had just applied his brakes at an intersection and as he came through the intersection he proceeded up a small hill and around a slight curve. By the time his car had straightened out of the curve, it was going at a speed of 40 to 50 miles per hour.

At a point in this highway some 1,000 feet from where the road straightens out, a spur railroad track owned and operated by the defendant crosses it at approximately right angles. Defendant's track runs from its railhead at the Donaldson Air Force Base to Gantt Station, a junction point with a line of the Southern Railway Company.

Plaintiff, a resident of Greenwood, S. C. and a traveling salesman, was returning home from a business trip in the Greenville area. He was familiar with this road and the fact that defendant's spur track crosses it at this point, since he had made the trip between Greenwood and Greenville on many occasions during both the day and night. He also knew that on occasions the defendant used this spur track, for while traveling this highway at night he had been forced to halt his car twice to permit the train to pass through the intersection. At these times, fusees were placed on the highway to warn of the passage of the train across the highway and these fusees had provided sufficient light to notify the plaintiff, even before he had rounded the curve, that a train was crossing. On the evening in question, plaintiff did not see any fusees or lights to warn him of a train crossing the highway.

On the right side of the highway about 50 feet from the road approximately 160

129 F. Supp. 41
feet north of the crossing there is a filling station and lunch counter. It is very brightly lighted at night by strings of electric lights. As the plaintiff came out of the curve the lights from his automobile blended with the bright lights from the station, making it almost impossible for him to see anything crossing the highway beyond the station

On the night of October 29, 1951, a train of twelve empty black gondola cars and one diesel locomotive left Donaldson Air Force Base for the Gantt Station early in the evening. The engine was pushing the line of cars. The train crew was composed of three men (an engineer and two brakemen), all enlisted men of the United States Air Force. This train proceeded west until it was within about 80 feet of the Augusta Road crossing. There it stopped, the train crew dismounted, left the train, crossed the Augusta Road and went into the service station mentioned above where they ate supper and stayed for about thirty minutes. They then left the eating place and returned to the train. The engineer walked about 500 feet down the track to the locomotive and the two brakemen boarded the lead car of the train, after having signalled the engineer with their flashlights to come ahead. The engineer gave the customary signal that he was starting the train, two short blasts on his diesel horn, and blew the horn intermittently until three or four cars of the train were over the crossing. The posted speed at the place of the accident is 55 miles per hour.

Although there is some testimony to the contrary, I find that the defendant did not place a fusee on the highway prior to the departure of the train across the intersection. The whistle or diesel horn was not blowing at the time of this collision and it had not been blowing since the third or fourth car crossed the highway. The bell was not ringing.

The train crew was grossly negligent, reckless and wilful in failing to protect this crossing on the night of October 29, 1951, by putting out a fusee as the standing operating instructions required, or by any other means, and such gross negligence, recklessness and wilfulness was the proximate cause of the injuries to plaintiff and his consequent damage. The plaintiff was not operating his car at an excessive rate of speed or at a speed which was greater than was reasonable at the time and place and under the circumstances. The plaintiff was not guilty of gross contributory negligence, recklessness or wilfulness; nor, for that matter, was he guilty of simple contributory negligence.

The plaintiff's wages were One Hundred ($100) Dollars a week prior to the collision and his loss in wages due to this collision is Thirty-eight ($3,800) Dollars. His medical expenses, including doctors' and hospital bills, were One Thousand and Six & 50/100 ($1,006.50) Dollars. His 1950 automobile was damaged to the extent of Twelve Hundred and Five ($1,205) Dollars. As a result of the injuries to his person and damages to his property, the plaintiff should be awarded the sum of Twelve Thousand, Seven Hundred and Fifty ($12,750) Dollars.

The plaintiff received payments under the South Carolina Workmen's Compensation Act (Code 1952, § 72-1 et seq.) of Four...

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3 practice notes
  • Bowman v. Norfolk Southern Ry. Co., Civ. A. No. 0:91-3270-12.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • September 9, 1993
    ...... has crossed such highway." The signal must be sounded continuously until the engine passes the crossing, Curry v. United States, 129 F.Supp. 38 (D.S.C.1954), and violation of this section is negligence per se, Seaboard Coast Line R.R. v. Owen Steel Co., 348 F.Supp. 1363 (D.S.C.1972). Ho......
  • Martinez v. Fenn, Civ. A. No. D:87-3067-8.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • December 28, 1988
    ...Ashton Williams of this court held that even willful conduct by government agents would not bar recovery. See Curry v. United States, 129 F.Supp. 38 (D.C....
  • James McWilliams Blue Line v. Esso Standard Oil Co.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 12, 1954
    ...decision of Judge Goddard. A petition under Admiralty Rule 56 is not limited to indemnification. It may assert a primary tort liability 129 F. Supp. 38 to a charterer. The Blue Mountain, D. C.Conn.1937, 20 F.Supp. 165. If upon the trial of this action the right of respondent to indemnificat......
3 cases
  • Bowman v. Norfolk Southern Ry. Co., Civ. A. No. 0:91-3270-12.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • September 9, 1993
    ...... has crossed such highway." The signal must be sounded continuously until the engine passes the crossing, Curry v. United States, 129 F.Supp. 38 (D.S.C.1954), and violation of this section is negligence per se, Seaboard Coast Line R.R. v. Owen Steel Co., 348 F.Supp. 1363 (D.S.C.1972). Ho......
  • Martinez v. Fenn, Civ. A. No. D:87-3067-8.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • December 28, 1988
    ...Ashton Williams of this court held that even willful conduct by government agents would not bar recovery. See Curry v. United States, 129 F.Supp. 38 (D.C....
  • James McWilliams Blue Line v. Esso Standard Oil Co.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 12, 1954
    ...decision of Judge Goddard. A petition under Admiralty Rule 56 is not limited to indemnification. It may assert a primary tort liability 129 F. Supp. 38 to a charterer. The Blue Mountain, D. C.Conn.1937, 20 F.Supp. 165. If upon the trial of this action the right of respondent to indemnificat......

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