Doremus v. Atlantic Coast Line R. Co.

• Decision Date: 19 March 1963
• Docket Number: No. 18041,18041
• Citation: 242 S.C. 123,130 S.E.2d 370
• Parties: Dennis Gary DOREMUS, by his Guardian ad Litem, Ray Rentz and J. F. Davis, Respondents, v. ATLANTIC COAST LINE RAILROAD COMPANY, Appellant.
• Court: South Carolina Supreme Court

Page 370

130 S.E.2d 370

242 S.C. 123

Dennis Gary DOREMUS, by his Guardian ad Litem, Ray Rentz and J. F. Davis, Respondents, v. ATLANTIC COAST LINE RAILROAD COMPANY, Appellant.

No. 18041.

Supreme Court of South Carolina.

March 19, 1963.

McKay, McKay, Black & Walker, Columbia, for appellant.

Blatt & Fales, Barnwell, Kearse, Kemp & Rhoad, Bamberg, for respondents.

BUSSEY, Justice.

This is an action to recover damages for personal injuries sustained by the infant plaintiff, Dennis Gary Doremus, when an automobile in which he was riding was involved in a collision with a train of the defendant at a crossing. A verdict for $75,000.00 actual damages, and $50,000.00 punitive damages was returned for the plaintiffs.

J. F. Davis, a resident of Virginia, is a party plaintiff by virtue of the assignment of a 1/100 interest in the claim of the infant plaintiff, executed by the duty appointed guardian ad litem of the infant plaintiff, said assignment having been authorized by order of Honorable J. B. Ness, Resident Judge of the Second Circuit, upon a petition of the guardian ad litem for such authority.

The defendant filed a motion to dismiss as to the plaintiff Davis on the ground that the complant stated no cause of action in his favor, it being contended that under the law of South Carolina a cause of action for personal injuries is not assignable and that no power inhered in the court of common pleas to authorize an assignment on behalf of an infant of any right of recovery for tort.

Coupled with such motion was another motion making the resident judge to review and vacate his order authorizing the assignment. Both motions were denied by the circuit judge and defendant duly appealed. The defendant answered denying that any negligence, willfulness or recklessness on its part was the proximate cause of any injury or damage suffered by the minor plaintiff; denied that the plaintiff, J. F. Davis, had any interest in the litigation, and set up the affirmative defense of gross contributory negligence, willfulness and recklessness on the part of the driver of the automobile.

The case came on for trial before the Honorable J. B. Pruitt, in the course of which timely motions for nonsuit, direction of verdict, judgment non obstante veredicto and a new trial were made and denied. The trial judge ordered a new trial unless the plaintiff should reduce the amount of punitive damages from $50,000 to $25,000, which reduction was accepted of record.

Due and timely notice of intention to appeal by the defendant followed and we are here concerned with exceptions to the rulings of the resident judge, as well as exceptions to the rulings of the trial judge.

The collision out of which this litigation arose occurred on the morning of March 4, 1961, at a point in Colleton County where State Highway No. S 15-52 crosses a railroad track of the defendant, about two miles west of the Town of Williams. The highway runs in a substantially northerly and southerly direction and the track of the defendant runs in substantially an easterly and westerly direction. Defendant's train, composed of a diesel engine, nine cars and a caboose, was traveling west en route from Green Pond, South Carolina, to Ehrhardt, South Carolina, and the vehicle in which the infant plaintiff was riding was proceeding in a southerly direction and operated by a brother of the infant plaintiff, Thomas Doremus, who was en route from the Doremus home in Ehrhardt, Bamberg County, to Charleston, South Carolina, for the purpose of a dental appointment. The Doremus brothers had never been on this particular road before, but Thomas Doremus had recently learned of this particular highway as a short cut which he could use en route to Charleston. The engineer of the defendant had been on that particular run 'off and on for twelve years.'

The right of way of the defendant in the vicinity of the particular crossing is fifty feet wide, extending twenty-five feet on each side from the center of the track. The evidence shows that to the east of the highway the area is heavily timbered on both sides of the railroad track, and the area on both sides of the highway as one approaches the crossing from the north is likewise heavily timbered.

The defendant contends that there was no evidence of either negligence or willfulness on the part of the defendant which would justify submitting the case to the jury as to either actual or punitive damages, and that the plaintiffs are barred from recovery because the driver of the car in which the infant plaintiff was riding was guilty of gross contributory negligence or willfulness as a matter of law, which was imputable to the infant plaintiff. These contentions are being discussed together because they necessarily involve a discussion of the evidence and in passing upon both contentions the evidence and the inferences reasonably deducible therefrom have to be regarded in the light most favorable to the plaintiffs.

The allegations of the complaint as to negligence and willfulness on the part of the defendant are several and detailed, but condensed, it is alleged that the defendant maintained an unsafe and dangerous crossing; that it allowed the obstruction of visibility in and around the crossing; that the engine and train were operated at an excessive rate of speed; that it failed to maintain adequate, reasonable and sufficient warnings as to the existence and nature of the crossing; and that it failed to give reasonable or any warning of the approach of the engine at the time and place.

Viewed in the light most favorable to the plaintiff, the following are the facts either clearly shown or reasonably deducible from the evidence. The car in which the infant plaintiff was riding was approaching the crossing at a speed of thirty-five to forty miles per hour, and no signal of any kind was given by the approaching train until the car was within approximately one hundred twenty-five feet of the crossing, when a single blast of the whistle occurred. The day was warm and sunny, with the windows of the car open and no radio playing therein, so that there was nothing to interfere with the driver hearing an earlier warning, had it been given. As soon as the driver of the car heard the whistle blast, he applied his brakes and laid down skid marks of approximately ninety-five feet before the car came either to a stopped or approximately stopped position with its front wheels on the track where it was struck by the front part of the engine of the defendant. There is direct evidence, as well as circumstantial evidence, from which it can be inferred that the engine was approaching the crossing at a speed of approximately forty miles per hour, although there was a rule of the defendant placing a speed limit on its trains at that crossing of twenty-five miles per hour. There is evidence from a witness for the defendant to the effect that this particular train usually proceeded in that vicinity at forty to fifty miles per hour. There was further evidence from defendant's witnesses to the effect that the train was off schedule that morning. Of significance, we think, is the testimony of the defendant's fireman that, 'when the brakes went into emergency I said it was an automobile because it happens so often. Quite a few close calls we don't hit.'

As to the appearance of the crossing and the visibility, as it was approached from the north on the highway, there was evidence that the general appearance of the crossing was such that it appeared to be an abandoned track. There was testimony that the angle of the sum at the time of the collision interfered with the travelers' vision so as to partially conceal the warning signs, and in addition, that the warning signs were partially obscured by bushes. There is repetitious testimony to the effect that due to timber, bushes and undergrowth, a traveler on the highway proceeding in a southerly direction would have to be within fifteen to twenty feet of the track before a train appraching from the east could be observed, and there was evidence that to the east of the highway and to the north of defendant's track, trees and undergrowth which would obstruct a traveler's vision was within eight feet of the track.

As to warning signs, there is a Highway Department railroad crossing sign on the shoulder somewhat less than four hundred feet north of the crossing, and the usual railroad crossing sign near the track. The injuries to the infant plaintiff were such that he was unable to recollect any of the events immediately before or at the time of the collision. The driver of the automobile testified that he did not see either of the warning signs and did not know that he was in the vicinity of a railroad crossing until he heard the single blast of the whistle when approximately one hundred twenty-five feet from the actual crossing. He admitted that the signs could be seen, but attributed his failure to observe them to the angle of the sun and to the partial obscurity of the signs as a result of vegetation.

The foregoing are the principal facts viewing the evidence in the light most favorable to the plaintiff, as we are required to do. Much of it was sharply contradicted by witnesses for the defendant, particularly as to the speed of the train, visibility, and the signals given. In view of the recited facts, however, we are convinced that there was abundant evidence to warrant the submission to the jury of the issues of both negligence and willfulness on the part of the defendant, and to sustain a verdict for both actual and punitive damages. There was evidence not only of the failure to give the signals required by statute, but evidence of common law delicts of the defendant which the jury could have found to be not only negligent, but willful and the proximate cause of the injuries sustained by the infant plaintiff. Independently of the signal statute, Section 58-743 of the Code, it is the common law duty of...