Drawdy v. Atlantic Coast Line R. Co.

• Decision Date: 12 October 1907
• Citation: 58 S.E. 980,78 S.C. 374
• Parties: DRAWDY v. ATLANTIC COAST LINE R. CO.
• Court: South Carolina Supreme Court

58 S.E. 980

78 S.C. 374

DRAWDY v. ATLANTIC COAST LINE R. CO.

Supreme Court of South Carolina

October 12, 1907

Appeal from Common Pleas Circuit Court of Colleton County; R. O Purdy, Judge.

Action by W. P. Drawdy, executor of M. A. Drawdy, against the Atlantic Coast Line Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

See 55 S.E. 444.

Griffin & Padgett, Howell & Gruber, and C. C. Tracy, for appellant.

W Huger Fitzsimons, T. M. Mordacai, Peurifoy Bros., and P. A Wilcox, for respondent.

WOODS J.

M. A. Drawdy was killed by defendant's train while attempting to cross its track at Green Pond, where the public road intersects the railroad; and the plaintiff, as administrator, brought this action to recover damages for his death. The judgment of the circuit court overruling a demurrer to the complaint was affirmed by this court. 75 S.C. 308, 55 S.E. 444. The former appeal decided it was not per se such negligence as will prevent a recovery for personal injuries or death for one to undertake to cross a railroad track at a crossing after he has heard one blast of the whistle of the approaching train. The particulars of the accident as they appeared in the complaint were held not to show on their face gross or willful negligence preventing a recovery under the statute which makes a railroad company liable when it fails to give the statutory signals, unless the person killed or injured was guilty of willful or gross negligence. When the case came on for trial, the circuit judge held the particulars of the accident developed by the evidence on behalf of the plaintiff to show plainly the gross negligence of Drawdy in attempting to cross the track in front of the train contributed to his death as a proximate cause, and granted an order of nonsuit. The appeal is from this order.

The deceased, M. A. Drawdy, and his wife, Elizabeth Drawdy, on their journey from Walterboro to Beaufort, had to stop off and change cars at Green Pond. They had left home without breakfast, and, while waiting for their train, Drawdy left his wife in the station, and went across the track for the purpose of buying lunch at a store nearby. On his return, he was struck and killed by a through train not scheduled to stop at Green Pond. There was evidence that the train was running at a high rate of speed, but not faster than the fast trains usually ran by; and that there was an embankment which for a part of the way would obstruct Drawdy's view of the approaching train on his return; and some of the witnesses testified they heard one sharp blast of the whistle at the usual place about 500 yards distant, but did not hear the continued signal required by the statute. The statute provides that, if the continued signal prescribed is not given, "the corporation shall be liable for all damages caused by the collision, *** unless it be shown that in addition to mere want of ordinary care, the person injured or the person having charge of his person or property was at the time of the collision, guilty of gross or willful negligence, or was acting in violation of the law; and that such gross or willful negligence or unlawful act contributed to the injury." The court held in Strother v. Railroad Co., 47 S.C. 381, 25 S.E. 273: "The failure on the part of defendant's servants to ring the bell or sound the whistle in the manner provided by the statute was negligence per se. When the defendant violates the requirements of the statute as to ringing the bell or sounding the whistle, and a person is injured by its locomotice while crossing a highway, street, or traveled place, it will be presumed that such negligence caused the injury, unless the testimony shows that the injury was caused in some other manner, which was not done in this case." There was evidence that the crossing at Green Pond was a much frequented and traveled place, and plaintiff contended on the authority of Risinger v. So. Ry. Co., 59 S.C. 429, 38 S.E. 1, that it was for the jury to decide whether the rate of speed at which the train was run by such crossing was negligence. The remarks in the Risinger Case were applied to the rate of speed through the town or Leesville, and we do not think there is good ground to extend the principle to an ordinary crossing merely because it is frequented, for the reason that as to mere crossings the statute has prescribed the precautions to be taken.

But the point is not material here, for under the case of Strother v Ry. Co., supra, noncompliance with the signal statute is presumed to be the negligence which caused personal injury or death of a person injured or killed by the train at a crossing. As there was some evidence from which it might possibly be inferred that the continued signal prescribed by law was not given, the consideration of the appeal from the nonsuit must begin with the assumption that the negligence of the defendant was a proximate cause of the death of Drawdy. The inquiry, then, is whether there was gross negligence on the part of Drawdy contributing to his death as a proximate cause. We think that no other than an affirmative answer is possible under the evidence offered by the plaintiff. Drawdy went across the track to the store of either Welch or Boynton. Those stores were opposite each other on the public road, not more than 30 feet from the track. G. S. Arnett, the only eyewitness of the accident, testified to these facts: He was standing between...