Funderburk v. Powell, No. 14354.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtFISHBURNE, Justice
Citation187 S.E. 742
PartiesFUNDERBURK. v. POWELL et al.
Decision Date05 October 1936
Docket NumberNo. 14354.

187 S.E. 742

FUNDERBURK.
v.
POWELL et al.

No. 14354.

Supreme Court of South Carolina.

Oct. 5, 1936.


[187 S.E. 743]

Appeal from Common Pleas Circuit Court of Kershaw County; G. Dewey Oxner, Judge.

Action by Watha Funderburk, by H. J. Funderburk, her guardian ad litem, against L. R. Powell, Jr., and another, receivers of the Seaboard Air Line Railway Company. From a judgment for plaintiff, defendants appeal.

Affirmed.

John K. deLoach, of Camden, and John D. Nock, of Cheraw, for appellants.

Robinson & Robinson, of Columbia, and Wittkowsky & Wittkowsky and Henry Savage, Jr., all of Camden, for respondent.

FISHBURNE, Justice.

This is an action to recover actual damages for injuries received in a collision between an automobile occupied by the plaintiff and a train of the Seaboard Air Line Railway Company, which was stationary at the time of the collision. The railroad company is sued in the name of its receivers, but for convenience it will be referred to as the defendant. The case does not involve the violation of any statute or municipal ordinance, but is founded solely on common-law negligence.

The accident occurred on December 7, 1931, between 9 and 10 o'clock p. m, in the little town of McBee, at a highway-railroad crossing made by the tracks of the defendant railroad company and United States Highway No. 1. At the time of the accident the automobile was occupied by the plaintiff, who was twenty years old, and by two other persons.

The undisputed facts and circumstances leading up to the accident may be narrated as follows: Plaintiff resided at her home near Pageland with her sister, Miss Oletha Funderburk, and her parents. Miss Oletha

[187 S.E. 744]

Funderburk was a school teacher, and learning of a vacancy in a school near Hartsville, wished to obtain this position for the plaintiff. With this purpose in view, she rented or hired from her great-uncle, Tom Funderburk, a car which the testimony shows was a 1929 model A four-door sedan. The uncle insisted that his chauffeur, Tom Rollins, who had had eight years' experience as a driver, and who was familiar with the automobile, should manage and operate the same on the contemplated trip. The chauffeur called at the home of the plaintiff and her sister about 5 o'clock in the afternoon of December 7th for the purpose of taking the two young ladies to interview the principal of the school near Hartsville. They sat on the front seat with the driver, Miss Oletha Funderburk sitting in the middle, and the plaintiff at her right on the outside.

On this mission, they passed through the town of McBee, and proceeded several miles beyond, to the place where they had the interview, which was the object of the trip. On their return they reached McBee by a different route, on a road paralleling the defendant's main line railroad track. Their way lay across the track, and the vehicle turned in to United States Highway No. 1, at right angles, at a point which is variously described as being a block or a block and a half from the railroad crossing in question. This highway runs east and west through the town of McBee, and the car approached the railroad crossing from the east, and collided with the passenger train of the defendant which was stationary, and which completely blocked the crossing. An electric light with a lighting capacity of 200 or 2S0 watts, maintained by the town, was suspended overhead about the center of the highway or street, on the east side of the crossing, at a distance variously estimated to be thirty-five to sixty feet away from the crossing. There was nothing to obstruct the view of the driver of the car from the point where he entered United States Highway No. 1, to the crossing, a block or a block and a half away.

The complaint alleges that as the car occupied by the plaintiff reached the said public railroad crossing, and was in the act of crossing thereover, the said automobile collided with the baggage coach of the defendant's passenger train, which the defendant had, through its servants, agents, and employees, carelessly and negligently permitted to stand in and across said public crossing and to block and obstruct the same, and which could not be observed on account of the darkness, without giving any reasonable or timely notice thereof, or warning, by the display of a suitable light or otherwise, or adopting any reasonable and proper means, by the use of a flagman or otherwise, to warn, reasonably safeguard, or protect the traveling public approaching said public crossing in the nighttime from collision and injury. We might add, however, that the testimony shows that the crossing was obstructed, not by the baggage coach, as alleged in the complaint, but by a refrigerator express car which was attached to the tender of the engine, which car had a clearance from the ground of 441/2 inches. The automobile occupied by the plaintiff collided with this car, and was jammed beneath it. When the automobile came to rest, the windshield was against the wall of the express car.

In consequence of this collision the plaintiff suffered serious bodily injuries; both of her legs were broken between the hip and the knee, and she received severe injuries to her face and head, which confined her for a period of nearly eighty days in a hospital. Testimony on her behalf is to the effect that as an aftermath of these injuries she still suffers, and will continue to suffer, in consequence thereof.

The train in question had blocked the crossing at the time of the injury for about a minute and a half. The fireman was on top of the tender, with a lighted flambeaux (a feeble light), engaged in the process of filling the tender tank from a stationary water tank located on the west side of the track. He testified that he saw the automobile as it approached the train, and when it actually collided with the side of the express car. The engineer, who was sitting in the cab, did not witness the accident, but heard the crash of the impact. He immediately went to the scene of the accident with a flashlight, which he stated he required because it was dark beneath the express car, and he needed its illumination to see beneath the car and to discover the passengers in the automobile.

Testimony for the defendant showed that two small lights were in the cab of the engine, and one on the outside near the injector. The express car, which completely obstructed the highway, was unlighted. As testified to by the station agent, this car was a "deadhead, " and was never lighted

[187 S.E. 745]

except when in use. The train crew consisted of five or six men. The crossing was not flagged by any one of the trainmen, nor was there any other light or electrical device or warning or caution of any kind which would indicate the presence of a train on the crossing, or give notice that the highway was blocked. The locomotive engineer testified on cross-examination: "I believe the baggage car (express car) itself created a shadow at the crossing. It would make a little dark spot right under where the eaves of the car were. I reckon there was just a little eave shadow where the automobile hit. It was as light there as it was where the engine was; the lights were all on in the engine. It wasn't as light back there at the baggage car as it was at the engine because the car didn't have a light attached to the outside like the engine did. It was light up in front of the engine."

Further testimony necessary for an understanding of the issues made by the appeal will be later adverted to.

The trial resulted in a verdict for the plaintiff in the sum of $5,500. On motion for a new trial, this amount was reduced by the trial judge to the sum of $4,000; the difference being remitted on the record by the plaintiff.

The appellant contends that the trial court erred in refusing to grant its motion for a nonsuit:

(a) For the reason that no actionable negligence of the defendant has been proved;

(b) That if negligence of defendant was established, there was contributory negligence and contributory gross negligence on the part of the driver, all of which is imputed to plaintiff; and

(c) That plaintiff herself was negligent.

Upon the same grounds, the appellant in the course of the trial moved for a directed verdict in its favor.

We will discuss together the effect of the refusal of the trial court to grant a motion for a nonsuit and for directed verdict, for even if it could be held under the testimony of the plaintiff and her witnesses that the nonsuit should have been granted, we are of the opinion that the testimony of the witnesses for the defense so aided plaintiff in the establishment of actionable negligence that it would have been error to have directed a verdict in fa vor of the defendant. Mellette v. A. C. L. R. Co. et al., 181 S.C. 62, 186 S.E. 545.

A careful study of the entire evidence, together with an examination of the photographs introduced by the defendant, showing the situs, convinces us that the trial court was correct in submitting the issue of actionable negligence on the part of the railroad company to the jury. The plaintiff testified that when the car she occupied emerged from beneath the overhead electric street light, they entered a dark area. It may be that that dark area was intensified by the shadow cast by the overhanging eave of the blocking express car, the doors of which were closed. It evidently presented a solid wall. The train had blocked the crossing for a minute and a half, and doubtless would have occupied the crossing for several minutes longer while the fireman was drawing water from the water tank. The headlight of the locomotive--thirty or forty feet beyond the crossing--illuminated only the space in front of it. It afforded no light on the crossing itself. The train coaches attached to the rear of the blocking express car shed no light upon the crossing. The testimony for the plaintiff tended to show that it was a real dark night and that the weather was somewhat foggy....

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40 practice notes
  • Indemnity Ins. Co. of North America v. Odom, No. 17702
    • United States
    • United States State Supreme Court of South Carolina
    • August 23, 1960
    ...and govern its movements, which is an essential requirement of the doctrine of common enterprise. Funderburk v. Powell, 181 S.C. 412, 187 S.E. 742; Rock v. Atlantic Coast Line Railway Company, 222 S.C. 362, 72 S.E.2d 900; Bolt v. Gibson, 225 S.C. 538, 83 S.E.2d 191. The Court below correctl......
  • Southern Pac. Co. v. Haight, No. 9775.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 16, 1942
    ...St. P. & P. R. Co., 202 Minn. 264, 278 N.W. 41. 19 Carson v. Baldwin, 346 Mo. 984, 144 S.W.2d 134. 20 Funderburk v. Powell, 181 S.C. 412, 187 S.E. 742; Prescott v. Hines, 114 S. C. 262, 103 S.E. 21 Richard v. Maine Cent. R. Co., 132 Me. 197, 168 A. 811. 22 The automobile driver testified th......
  • Marks v. Sons, No. 15571.
    • United States
    • United States State Supreme Court of South Carolina
    • August 10, 1943
    ...facts. Murray v. Boston, etc., R., 72 N.H. 32, 54 A. 289, 61 L.R.A. 495, 101 Am.St.Rep. 660; Funderburk v. Powell et al., 181 S.C. 412, 187 S.E. 742." State v. Long, 186 S.C. 439, 195 S.E. 624, 626. A declaration of a fact, which although antecedent in point of time, if it is preliminary or......
  • Rock v. Atlantic Coast Line R. Co., No. 16678
    • United States
    • United States State Supreme Court of South Carolina
    • October 30, 1952
    ...control of the means or agencies employed to prosecute the common purpose. * * *" See also Funderburk v. Powell, 181 S.C. Page 905 412, 187 S.E. 742, and Long v. Carolina Banking Co., 190 S.C. 367, 3 S.E.2d The testimony, which we need not state in detail, might support the inference that t......
  • Request a trial to view additional results
40 cases
  • Indemnity Ins. Co. of North America v. Odom, No. 17702
    • United States
    • United States State Supreme Court of South Carolina
    • August 23, 1960
    ...and govern its movements, which is an essential requirement of the doctrine of common enterprise. Funderburk v. Powell, 181 S.C. 412, 187 S.E. 742; Rock v. Atlantic Coast Line Railway Company, 222 S.C. 362, 72 S.E.2d 900; Bolt v. Gibson, 225 S.C. 538, 83 S.E.2d 191. The Court below correctl......
  • Southern Pac. Co. v. Haight, No. 9775.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 16, 1942
    ...St. P. & P. R. Co., 202 Minn. 264, 278 N.W. 41. 19 Carson v. Baldwin, 346 Mo. 984, 144 S.W.2d 134. 20 Funderburk v. Powell, 181 S.C. 412, 187 S.E. 742; Prescott v. Hines, 114 S. C. 262, 103 S.E. 21 Richard v. Maine Cent. R. Co., 132 Me. 197, 168 A. 811. 22 The automobile driver testified th......
  • Marks v. Sons, No. 15571.
    • United States
    • United States State Supreme Court of South Carolina
    • August 10, 1943
    ...facts. Murray v. Boston, etc., R., 72 N.H. 32, 54 A. 289, 61 L.R.A. 495, 101 Am.St.Rep. 660; Funderburk v. Powell et al., 181 S.C. 412, 187 S.E. 742." State v. Long, 186 S.C. 439, 195 S.E. 624, 626. A declaration of a fact, which although antecedent in point of time, if it is preliminary or......
  • Rock v. Atlantic Coast Line R. Co., No. 16678
    • United States
    • United States State Supreme Court of South Carolina
    • October 30, 1952
    ...control of the means or agencies employed to prosecute the common purpose. * * *" See also Funderburk v. Powell, 181 S.C. Page 905 412, 187 S.E. 742, and Long v. Carolina Banking Co., 190 S.C. 367, 3 S.E.2d The testimony, which we need not state in detail, might support the inference that t......
  • Request a trial to view additional results

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