Dunbar v. Evins

• Decision Date: 03 October 1941
• Docket Number: 15313.
• Citation: 17 S.E.2d 37,198 S.C. 146
• Parties: DUNBAR v. EVINS et al.
• Court: South Carolina Supreme Court

17 S.E.2d 37

198 S.C. 146

DUNBAR v. EVINS et al.

No. 15313.

Supreme Court of South Carolina

October 3, 1941

Frank G. Tompkins, of Columbia, and Samuel R. Watt, Horace L Bomar, Jr., Donald Russell, and Rufus M. Ward, all of Spartanburg, for appellants.

Williams & Busbee, of Aiken, Barron, Barron & Walker, of Union, and Carlisle, Brown & Carlisle, of Spartanburg for respondent.

G. B GREENE, Acting Associate Justice.

Plaintiff R. B. Dunbar, commenced this action in the Court of Common Pleas for Union County, S. C., demanding $25,000 actual and punitive damages against the defendants, J. C. Evins, a resident of Spartanburg County, S. C., and Southern Railway, Carolina Division, a corporation under the laws of South Carolina, and Southern Railway Company, a corporation under the laws of the State of Virginia, both of said corporations having offices and agents in Union County, S. C.

The material allegations of the complaint are:

"3. That in connection with the operation and maintenance of said railroad and right-of-way, said corporations own, control and maintain upon said right-of-way in said Union County, certain warning signs at grade crossings and a telegraph or telephone line consisting of wires strung from upright wooden poles located on said right-of-way.

"4. That within the County of Union and about two miles northwest of the said City of Union, the State Highway running south from Kelly's enters the State Highway running between Union and Spartanburg; that said highways are both heavily travelled and much used by the public for a great many years and that said Union Highway is one of the main travelled east and west state highways; that the said Kelly's highway runs across the track and right-of-way of said railroad corporation defendants immediately before entering said Union highway, that before crossing said tracks, a traveller on said Kelly's road approaching said highway intersection does not have full and unobstructed view of said Union road to the south because of a dip in said road and because of the railroad embankment intervening in the line of vision and partially hiding said road; but that after crossing said railroad tracks there would remain sufficient room on the Kelly's road to permit such traveller to look out for traffic before entering said Union road were it not for the obstructions to vision hereafter mentioned; that said highway intersection is a location of special hazard in that there is the railroad crossing aforesaid; and in that immediately northwest of said highway intersection the Union road cuts sharply to its left and around a hillside which completely obscures said road and traffic thereon approaching the intersection, except for a short distance adjacent to said intersection; and in that immediately opposite said intersection there is a store and filling station, so that the driveway into and the service yard of the filling station are practically in continuation of said Kelly's road for a traveller turning therefrom left towards Union; and in that in addition to said filling station driveway there are several nearby dwelling houses so that the roads and driveways giving access thereto come into the Union road close together and about opposite the entrance of the Kelly's road; that prior to the collision hereinafter alleged, the State Highway Department had placed a short distance south of the highway intersection aforesaid a warning sign reading 'Slow' on the east side of the Union road.

"5. That along the east side of said Union road and on said railroad right-of-way, said defendant railroad corporations had erected and were at the time herein mentioned maintaining a telegraph or telephone line upon wooden poles, and said poles being erected and placed in such a way that when a traveller on said Kelly's road about to enter said Union road had arrived at the narrow space between the railroad tracks and the edge of the Union road, the said line of poles greatly interfered with and obstructed the view of the Union road to the south; that in addition to said poles, the said defendant railroad corporations had erected and were at the times herein mentioned maintaining on said right-of-way a large warning sign a short distance south of said highway intersection and on the east side of said Union road and about in line with said poles and about the height of the line of vision of such traveller about to enter said Union road, and so being placed, the said warning sign further interfered with and obstructed the traveller's view of said road; that in addition to said poles and warning sign, said defendant railroad corporations had erected and were at the times herein mentioned maintaining on their said right-of-way a large metal sign board and cross arm device on an upright iron post; that said sign board is a large square solid plate fixed about half way up said upright post, and that cross arm consists of a horizontal arm above the sign board aforesaid, at each end of which is hung a large round solid plate; that said device was placed so as to serve as a railroad crossing warning to travellers on said Union road approaching said highway intersection from the south and that the said device was placed at the southeast corner of said intersecting roads and practically in line with the posts and warning sign aforesaid, and being so placed it further greatly interfered with and obstructed the view of said Union road; that in addition to the poles, warning sign and cross arm device aforesaid, the said defendant railroad corporations, at the times herein mentioned, were permitting and allowing the erection and maintenance on said right-of-way aforesaid of various State Highway signs and other devices substantially in line with the obstructions aforesaid and which were placed in such position that they further interfered with and obstructed view of said Union road in both directions; that the obstructions to vision aforesaid were and are so placed that their effect in obstructing the view of the Union road is not apparent to a traveller approaching the same on said Kelly's road until suddenly and without warning said obstructions practically shut off his view of the Union road at the time he is about to enter and is entering the same immediately after crossing said railroad tracks and while he is in the remaining part of Kelly's road from which he would have ample opportunity to look out for traffic after crossing the railroad were it not for said hindrances and obstructions to vision.

"6. That on or about the 23rd day of March, 1938, plaintiff was a traveller in an automobile coupe going west on Kelly's road and entering said Union road and turning to his left in order to proceed toward the City of Union; that plaintiff approached said railroad crossing and highway intersection at a slow rate of speed and at a time when there appeared to be no traffic approaching from plaintiff's right and no traffic about to enter said highway from said filling station service yard and driveway or from said nearby roads and driveways of dwelling houses; that plaintiff saw an automobile approaching him from his left on the Union road that as he crossed the railroad, plaintiff slowed up for the approaching car to pass and then plaintiff saw the automobile of the defendant, J. C. Evins, approaching on his left at such a distance away as to afford plaintiff ample time to enter and cross the Union road before its arrival; that because of the sudden and unexpected obstruction to plaintiff's vision aforesaid, plaintiff was deprived of opportunity to judge the speed and management of the Evins car, but under the circumstances was obliged to rely on its being properly operated; that plaintiff entered said Union road and was proceeding on his right side thereof when he was suddenly confronted by the Evins automobile, approaching plaintiff from the south and on its wrong side of the road and travelling at a terrific and fearful rate of speed; that realizing that said Evins automobile, which was a high powered and heavy Cadillac sedan, was not in the control of its driver so as to be able to stop the same or slow the same so as to yield the right-of-way to plaintiff who had entered the highway intersection, and realizing that a collision was imminent and in hope of avoiding same or of ameliorating its consequences, plaintiff cut his coupe off to the left, but that said Cadillac automobile nevertheless cut off to its left at the same...