Gibson v. Atlantic Coast Line R. Co.

• Citation: 96 S.E. 519,110 S.C. 331
• Decision Date: 20 July 1918
• Docket Number: 10053.
• Parties: GIBSON v. ATLANTIC COAST LINE R. CO.
• Court: South Carolina Supreme Court

96 S.E. 519

110 S.C. 331

GIBSON v. ATLANTIC COAST LINE R. CO.

No. 10053.

Supreme Court of South Carolina

July 20, 1918

Appeal from Common Pleas Circuit Court of Marlboro County; T. H Spain, Judge.

Action by W. S. Gibson against the Atlantic Coast Line Railroad Company. From an order of nonsuit, plaintiff appeals. Affirmed.

Fraser J., dissenting.

A. L Hamer and J. K. Owens, both of Bennettsville, for appellant.

D. D McColl, of Bennettsville, for respondent.

WATTS, J.

This is an appeal from an order of nonsuit granted by his honor, Judge Spain, at the fall term of court, 1917, for Marlboro county.

The exceptions, seven in number, allege error. We will not consider them seriatim, as in our view of the case neither the exclusion of the evidence complained of or any other error of his honor (if any) was prejudicial to the plaintiff, as the evidence in the case admits of no other inference than that neither a watchman nor gates at the crossing could have prevented the plaintiff from running into the train. The sole proximate cause of plaintiff's injury was his lack of care and his failure to observe the ordinary precaution in crossing the railroad track. The plaintiff saw the train crossing and actually occupying the track. His own reckless conduct was the direct and proximate cause of his injury. He saw the train when he was at least 150 feet from it. He did not stop, although he could have done so, and made no effort to stop it. He thought by timing his movements and still running his automobile the train would pass over the crossing before he reached it. He had defective lights on his car. The only inference that can be drawn from the evidence is that not the failure to have gates or a watchman at the crossing or the high rate of speed of the train, but the careless, reckless conduct of the plaintiff, was the cause of his injury. The plaintiff can have no recovery under the facts of the case and under Barber v. Railroad Co., 34 S.C. 444, 13 S.E. 630; Cable Piano Co. v. Railroad, 94 S.C. 145, 77 S.E. 868.

Exceptions overruled.

Judgment affirmed.

HYDRICK and GAGE, JJ., concur. GARY, C.J., did not sit.

FRASER J.

I cannot concur in the opinion of the majority of this court. There was evidence offered, and I think should have been allowed, that the crossing was not only dangerous, but so much so that the grand jury had more than once made presentment of it; that the defendant had...