Gleaton v. Southern Ry. Co.

• Decision Date: 13 June 1946
• Docket Number: 15850.
• Parties: GLEATON v. SOUTHERN RY. CO. et al.
• Court: South Carolina Supreme Court

38 S.E.2d 710

208 S.C. 507

GLEATON v. SOUTHERN RY. CO. et al.

No. 15850.

Supreme Court of South Carolina

June 13, 1946

As Modified on Denial of Rehearing July 10, 1946.

Adam H. Moss, James A. Moss, and P. F. Haigler, all of Orangeburg, and Frank G. Tompkins, of Columbia, for appellant.

T. B. Bryant and A. J. Hydrick, both of Orangeburg for respondents.

STUKES, Justice.

Mike Gleaton, an active and substantial business man and farmer of Springfield, was traveling very slowly, about five miles an hour, eastward in his automobile on Orangeburg Street of the town at about 10 o'clock on the morning of December 20 1944, when he was struck by a locomotive of appellant at the grade crossing of its lines of railway just north of the passenger and freight station. There are three tracks, the first as decedent approached was the 'house' or sidetrack, then the main track on which the locomotive was moving, and finally the passing track. Attached to the locomotive was only one coach and it was returning as an 'extra' from Jacksonville where it had delivered a troop train, and did not stop at Springfield.

The decedent was alone in his automobile, had stopped at the post-office, reversed from his parking position and started over the crossing when no scheduled train was due. He was seen by numerous disinterested witnesses, who testified in about equal division as to whether the statutory crossing signals were given. All agreed, however, that Mr. Gleaton slowed down almost, if not quite, to a stop a few feet from the crossing (which tends to negative gross negligence), and then proceeded over the house track and finally on the main line where his car was struck as it was swerved to the left in an apparent last effort to escape. The pilot or cowcatcher of the locomotive went under the running board of the automobile which was thereby suspended and carried for a distance of 296 feet before the locomotive was stopped, the automobile extricated and the injured driver removed. He was given first aid by a local physician and sent to a hospital where he died about a week later.

The suit is under Lord Campbell's Act, sections 411 and 412 of the Code of 1942, by his son, the executor of his will. Besides allegations of the failure to give the crossing signals required by statute, the complaint specified as alleged acts of wilful, wanton, and reckless negligence (a) excessive speed of the train in violation of the state law and municipal ordinance, (b) failure of the crew to keep a reasonable lookout, (c) lack of a flagman at the crossing, (d) placing a boxcar on the sidetrack near the station in position to obstruct decedent's view and (e) defective and inadequate brakes on the locomotive.

The action for $40,000 damages was against the appellant and the engineer in charge of its locomotive, the defendant Moore, and the verdict of $5,000 actual damages was against the company alone. The trial court refused timely motions for nonsuit and directed verdict and after the latter against it appellant moved for judgment non obstante veredicto. The appeal is only from the refusal of the last mentioned motion.

It was expressly made upon the grounds formerly stated for appellant's prior motions for nonsuit and directed verdict, and the grounds of the latter included, in effect, the single ground of the former. The following is quoted from the transcript of record for appeal.

'Mr. Moss: Your Honor, at this time we wish to make a motion for a directed verdict in favor of the defendant the Southern Railway Company notwithstanding the verdict found by the jury, and we wish to make our motion for this directed verdict upon the grounds stated in our motion for a directed verdict stated at the close of the testimony. Your Honor, this motion is also made on the same grounds as the grounds stated in our motion for a nonsuit.

'The Court: I think I will have to overrule the motion for the reasons I gave in overruling your other motion for a directed verdict.'

Much of appellant's able argument is bottomed upon the premise that the jury's favorable verdict for the engineer-defendant absolved the appellant from liability for the alleged negligent and reckless acts and omissions of it which, it is contended, were most, if not all, the acts of the engineer, and the latter was found innocent by the jury. Carter v. A. C. L. R. Co., 194 S.C. 494, 10 S.E.2d 17. But appellant is plainly not in position to claim any advantage from the verdict of acquittal of the engineer for it made no point of it in the trial court. The record is entirely clear thereabout.

We recur then to the grounds of the motion which appellant made for a directed verdict in its favor at the close of the evidence. The first relates to punitive damages, not now in issue for the verdict was only for actual damages and, incidentally, was for a very modest amount for the wrongful death of a substantial man of family. The second and third grounds are to the effect that there was no evidence of actionable negligence of the defendants; the fourth that the evidence supported no reasonable inference other than that negligence and wilfulness of the decedent constituted the sole cause of the collision; fifth, that the only reasonable inference from the evidence was that decedent caused his own death by his sole, or at least contributory, negligence and recklessness; and sixth, he was guilty of contributory negligence and wilfulness as a matter of law and, therefore, there was no issue of fact for the jury.

Thus the appeal presents the question: Was the evidence susceptible of a reasonable inference that the fatal collision proximately resulted from the negligence, recklessness or wilfulness of the appellant, its agents or servants, in any of the respects alleged in the complaint, and the decedent not guilty of contributory recklessness or wilfulness?

Most important in our consideration of the evidence is the statutory effect of the failure of the company and its servants to give the crossing signals, the sounding of the whistle and the ringing of the bell, at the places and in the manner prescribed by the Code. Sections 8355 and 8377. If the jury found that there was such failure to comply with the law, it is rebuttably presumed that such delict contributed to the injury as a proximate cause and plaintiff is entitled to recover unless his decedent was guilty of contributory gross or wilful negligence; and the appeal is in effect that he was as a matter of law, and that no jury issue thereabout arose from the evidence. Let us then briefly review it.

Numerous witnesses testified that they saw the approach of the train and heard no crossing signals or heard such that fell short of conformity with the statute, from which it was certainly inferable that the signals were not given as provided by law. The testimony of other witnesses was to the contrary, which made the issue for the jury, and we must now assume that they were not given. Cook v. A. C. L. R. Co., 196 S.C. 230, 13 S.E.2d 1, 133 A.L.R. 1144.

Turning to the evidence of the conduct of decedent to determine whether it should have been held by the trial court that it was reasonably susceptible only of the conclusion of gross or wilful conduct, we have no difficulty in affirming the trial judge in this respect and agreeing with him that the evidence thereabout created a factual issue for the jury.

All of the witnesses agree, including the train crew, that the automobile was driven upon the crossing at a very slow rate of speed and that a few feet therefrom it was brought practically, if not completely, to a stop, from which it is inferable that the driver was trying to effectively use his senses to determine whether a train was approaching. He had three ways to look for danger, to his right whence it came, ahead of him for other vehicles, and to his left at the other ends of the three railway tracks over any or all of which an unexpected train or trains might have also come.

There were admitted obstructions to his view. Helpful photographs and diagrams were in evidence and are before us. There was a tree with...