Eastern Brick and Tile Co. v. United States, Civ. A. No. 66-449.

• Decision Date: 29 February 1968
• Docket Number: Civ. A. No. 66-449.
• Court: U.S. District Court — District of South Carolina
• Parties: EASTERN BRICK AND TILE CO., Inc., Plaintiff, v. UNITED STATES of America, Defendant.

281 F. Supp. 216

EASTERN BRICK AND TILE CO., Inc., Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. 66-449.

United States District Court D. South Carolina, Columbia Division.

February 29, 1968.

COPYRIGHT MATERIAL OMITTED

Henry B. Richardson, Richardson & James, Sumter, S. C., for plaintiff.

Klyde Robinson, U. S. Atty., Wistar D. Stuckey, Asst. U. S. Atty., Columbia, S. C., for defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW, and ORDER

DONALD RUSSELL, District Judge.

This is an action under the Federal Tort Claims Act (28 U.S.C.A. §§ 1346 (b) and 2671 et seq.) and arises out of a collision between an engine operated by the defendant over a small spur line near Shaw Air Force Base and a truck and trailer, loaded with certain heavy material, owned by the plaintiff.

On the basis of the testimony taken on trial before me, I make the following findings of fact and conclusions of law:

FINDINGS OF FACT

In order to provide rail service to Shaw Air Force Base, the defendant maintains and operates a spur line from the main line of the Atlantic Coast Line Railroad near Wedgefield, South Carolina, to the Base, a few miles distant. The spur line crosses two highways. One of these highways is a heavily traveled, four-lane highway from Columbia, South Carolina, to Sumter, South Carolina, designated as Highway 76. The other is a two-lane highway, about 18 feet in width, running between Wedgefield and Sumter, designated as Highway 763. This latter highway, at the point where the spur line crosses it at right angles, is located about seven or eight hundred feet from the main line of the Coast Line and runs parallel with such line; the customary warning signals, erected at the proper locations, were present on both sides of the highway as it approaches the crossing.

There was at the time of the accident herein a growth of small pine trees near the western side of the right-of-way of the spur line between the point where such spur left the Coast Line main tracks and its crossing of Highway 763. However, such pines were not high enough to obscure fully a train proceeding along the spur line between such crossing and the Coast Line main track from the view of a traveler on the highway approaching, as the plaintiff's driver was, from the direction of Wedgefield.

On the morning of July 7, 1965, a truck and trailer of the plaintiff, loaded with 18 to 20 tons of ceramic material and proceeding along Highway 763 from Wedgefield toward Sumter, struck an engine of the defendant as it was proceeding in the direction of the Base through the crossing over Highway 763 and swerved to the left into a field alongside the spur track. It seems agreed that the speed of the engine at the time was about 6 miles per hour and that at such speed it could have stopped within some 10 or 15 feet. The truck and trailer, according to its driver, had been proceeding at a speed of approximately 35 to 40 miles per hour. As it approached the crossing in question, the driver of the truck decreased his speed in anticipation of a possible train approaching the crossing. When the driver was "maybe a hundred feet, maybe a little further", he conceded he saw the train approaching the crossing but apparently made no effort to stop his truck. His testimony is that, when he first saw the engine it "was going real slow" but that, immediately thereafter, it "increased its speed * * * in order to beat me (him) across the crossing". As the driver explained it, the engine was "going slow enough if he hadn't increased his (its) speed, I would have beat him (it) across the track. Still, when he increased his speed, that just shut the road off on me". It seems doubtful that the driver of the truck ever considered an attempt to stop his truck for the crossing. When asked whether he ever had an intention of stopping, he initially replied, "Well, if they hadn't increased their speed, I would have went across the crossing."

The driver of the truck explained his failure to see the engine earlier by the claim that the engine was obscured from his view by the growth of small pines. However, the engineer on the train testified that he could see over the pine trees the plaintiff's truck as it proceeded along the highway and, if he could, the truck driver likewise could have seen the engine. Moreover, the truck driver conceded he could "see a little through the trees"¹ and actually testified that he saw the engine "creeping through the bushes". I conclude that the truck driver saw the engine in ample time to have stopped before reaching the crossing.

The engineer on the defendant's engine, in his version of the accident, conceded that he saw the truck of the defendant, as it approached the crossing, some distance from the crossing. He fixed the speed of the truck, when he first saw it, at "50 to 60 miles an hour". From that point, the driver of the truck "seemed to slow down" and the engineer, according to his testimony "figured he was going to stop". The engineer testified that he did not realize until he was "about ten feet away from the" crossing that the truck was not going to stop. He added he did not immediately apply his emergency brakes because, if he had, he would have stopped in the middle of the crossing, making a collision with the truck certain and inevitable. He concluded that the safest course for him to pursue, having regard for the safety of the truck as well as his own crew was to proceed on, in the hope that he might clear the crossing before the truck reached it. Actually, he almost did this. The truck hit the engine near its rear and had the truck driver applied his brakes, it is likely he might have avoided striking the engine entirely.

The engineer testified that he began to sound his whistle and ring his bell about 200 yards from the crossing. The driver of the truck testified that he did not hear either the whistle sound or the bell ring. It is of record that the driver is now deaf but whether he was deaf at the time of the accident was not established. Whether the truck driver heard it or not, I am satisfied that the engineer did sound the whistle and ring the bell on his engine some distance from the crossing but not within the limits fixed in the South Carolina statute; but such ringing of the bell, or the absence of it, did not contribute to such collision. The driver saw the train; his attention was drawn to it; this was all the giving of the statutory signals could have done by way of warning the driver. Despite this, the driver of the truck concluded he could "beat" the train across and that he attempted to do, without making any effort to stop for the approaching train.

The defendant issued rules for the operation of trains along its spur line. One of these rules dealt with crossings over highways. The language of the rule indicated that, before crossing a highway, the train should stop and a flagman precede the train across the crossing. This, the defendant contended, applied only to the crossing over Highway 76 and was never understood to apply or applied to Highway 763. The plaintiff, however, testified that on all occasions he had noted a train on the crossing over Highway 763, there was a flagman.

The defendant conceded that, when engaged in switching operations about the crossing, it did put a flagman on the crossing but not otherwise. It was not engaged in switching operations on the day of the accident. On this occasion, there was, according to the driver of the truck, a flagman running alongside the engine but he did not precede the train over the crossing. The driver of the truck, however, saw the engine; he apparently knew the engine was proceeding over the crossing; he gauged its speed accordingly and determined he could "beat" it across. He explained the failure to "beat" it across by the circumstance that the engineer, as he described it, accelerated his own speed in order to "beat" the truck across the crossing. In short, according to the driver of the truck, the accident resulted from the simultaneous attempt by the truck driver and the engineer to "beat" the other across the crossing; unfortunately, it was a "tie". The defendant's witnesses deny that the speed of the engine was increased. I am inclined to regard this as supported by the weight of the testimony.

From this testimony, I find the following facts with respect to this accident:

(1) The driver of the truck was not maintaining a proper look-out, nor did he decelerate his truck as he should have in approaching the crossing. If he had, he would have seen the train in ample time to have stopped and could have stopped. As a matter of fact, I think he saw the train in ample time, had he acted promptly, to have stopped, but inaccurately concluded from the slow speed of the train that he could "beat it" across the crossing and that he tried to do.

(2) The failure of the defendant to give the statutory signals for the full distance of 850 feet prior to reaching the crossing was not a cause of the accident. The driver of the truck saw the engine in ample time to have stopped, had he not chosen to attempt to "beat" the engine across.

(3) The rules issued by the defendant for the operation of trains along the spur line did not, as construed by both those issuing and those observing such rules, require a flagman at the crossing over Highway 763. Even if such rules did so require, the presence of such a flagman would not have caused the driver of the truck to have stopped; he saw the train but proceeded because he thought he could "beat" the train across. It is unlikely that his conclusion would have been different, even had a flagman been present.

(4) After he saw the engine, the driver of the truck had ample opportunity, had he used appropriate care and vigilance, to have stopped his truck and avoided the collision. There is no evidence that his speed was such that he could not have stopped or that his brakes were defective in any way. He chose not...