Glenn v. Southern Ry. Co.

• Decision Date: 16 April 1928
• Docket Number: 12429.
• Citation: 142 S.E. 801,145 S.C. 41
• Parties: GLENN v. SOUTHERN RY. CO. et al.
• Court: South Carolina Supreme Court

142 S.E. 801

145 S.C. 41

GLENN v. SOUTHERN RY. CO. et al.

No. 12429.

Supreme Court of South Carolina

April 16, 1928

Appeal from Common Pleas Circuit Court of Richland County; John S Wilson, Judge.

Action by T. M. Glenn against the Southern Railway Company and others. From a judgment for plaintiff, and an order settling the case for appeal, defendants appeal. Judgment affirmed and appeal from order settling case sustained.

Section 541 of the Revised Ordinances of the City of Columbia for 1920 provides as follows:

"That no car or cars of any railroad shall be left standing on any portion of any street in the city of Columbia where the railroad crosses such street on the same grade, but said street shall be kept open for its entire width." Frank G. Tompkins and F. P. McGowan, Jr., both of Columbia for appellants.

Jas. S. Verner and E. A. Blackwell, both of Columbia, for respondent.

BLEASE J.

This was a tort action tried in the court of common pleas for Richland county before Hon. John S. Wilson, as presiding judge. The verdict of the jury was in favor of the plaintiff in the sum of $8,125 actual damages. The defendants have appealed to this court from the judgment against them, and also from the order of the circuit judge settling the case for appeal.

The negligence of the defendants, as alleged in the complaint, consisted (1) of blocking the street by a freight train, and (2) in failing to give signals of warning before moving the train. The defendants alleged contributory negligence on the part of the plaintiff in crawling through between the cars.

There is no complaint as to error on the part of the trial judge in the instructions he gave the jury. The exceptions are directed entirely to the refusal to direct a verdict in behalf of the defendants.

The accident occurred after midnight, on March 9, 1925, at the Assembly street crossing, in the city of Columbia. The plaintiff, who is employed as a clerk in the Southeastern express office, about a block below the Union station, left the express office, walked several blocks, and then started to return, walking along Assembly street until he came to the railroad crossing. He found the street blocked by a freight train, about 50 cars in length. The testimony of plaintiff is that he looked both ways, saw box cars on each side of the street, but no engine, waited about 15 minutes without any movement of the train, did not hear any signals given, and, then, believing that it was a "dead" train, started to crawl through between the cars. When he was about halfway through, the train started up and he was thrown off; his foot being mangled and crushed under the train. By walking back the way he came-a distance of about 5 blocks further-he could have used an under pass to the express office.

It is urged that the plaintiff was chargeable with contributory negligence for the reasons that (1) there was no emergency to justify his going between the cars, and (2) he chose the obviously dangerous way of continuing his journey.

The first difficulty that faces the defendants in this advocacy of these positions is plaintiff's testimony that he had become convinced, after waiting 15 minutes, that the train was "dead." In this situation we are governed by the declaration of this court in Lorenzo v. Railroad, 101 S.C. 409, 85 S.E. 964:

"If the jury took the view that under all the circumstances the danger was not obvious, then the necessity for the emergency did not exist. *** If the jury believed that the plaintiff was justified in concluding *** that the train was a 'dead' train, then they might find that the risk was not obvious."

It must be remembered that the action arises under a legislative enactment which makes mandatory the giving of specifically described signals by railroad trains in all movements of trains over street crossings. Section 4903, Civ. Code 1922. When the train is at a standstill within 100 yards of a railroad crossing the bell must be rung or whistle sounded "for at least 30 seconds before the train is moved." If the statute is not observed to the letter by giving the signal for the full prescribed period of time, then the railroad company is negligent per se, and a presumption of fact arises that the failure to give the required signals was the proximate cause of the injury. McBride v. Railroad Co., 140 S.C. 260, 138 S.E. 803; Brogdon v. Railroad, 141 S.C. 238, 139 S.E. 459.

As applied to similar cases to this, the statute has been construed and given effect in a number of well-considered cases. Littlejohn v. Railroad Co., 45 S.C. 181, 22 S.E. 789; Burns v. Southern Railway, 61 S.C. 404, 39 S.E. 567; Thomasson v. Southern Railway, 72 S.C. 1, 51 S.E. 443; Weaver v. Southern Railway, 76 S.C. 49, 56 S.E. 657, 121 Am. St. Rep. 934; Walker v. Railway, Carolina Division, 77 S.C. 161, 57 S.E. 764, 12 Ann. Cas. 591; Lorenzo v. Railway Co., 101 S.C. 409, 85 S.E. 964.

In Littlejohn v. Railroad, decided in 1895 by distinguished jurists of the same generation that had part in the adoption of the signal statutes, the plaintiff also lost his foot, under circumstances which were in many respects almost identical to the case now before us. The accident occurred on a street crossing in the town of Gaffney. The train had been at a standstill for about 10 or 15 minutes before plaintiff started to cross between the cars. His reason for going between the cars was that it would have been "a great inconvenience and loss of time to go around the train." There was testimony that the statutory signals were not given. A nonsuit was granted by the trial judge, influenced by his view that the signal statute did not apply when the train was stopped on the crossing. In reversing the nonsuit and ordering a new trial, the court said:

"The words of the statute, within a less distance than 100 rods, are fully answered by some of these cars being below the street in question. Hence the duty to sound the whistle or ring the bell for 30 seconds existed with this railroad, so far as this defendant was concerned; and if the railroad neglected this duty, a prima facie case of negligence was established. *** The other claims of defendant, *** that the evidence showed that plaintiff took his own risk in attempting to cross through and between the cars in question; and that there was no proof that injury was caused by any negligence of defendant, respondent-all these present questions of fact that ought to have been passed upon by the jury and not the judge."

A second appeal of the Littlejohn Case is reported in 49 S.C. 12, 26 S.E. 967. Although a review of the former decision was made at the request of the defendant, the court, by unanimous decision, adhered to its former conclusions, commenting as follows:

"At the time when the plaintiff went between the cars for the purpose of crossing the track, the train was at a standstill and obstructed the crossing. It was therefore the plainly expressed duty of the defendant, before moving the engine, to ring the bell or sound the whistle for at least 30 seconds."

Also, in the case of Weaver v. Railroad, supra, where it was contended that the lowering of gates across the street afforded plaintiff the same warning as if the signal requirements had been fully complied with, the court disposed of the contention by saying:

"*** The statute was intended to inform those about to use the crossing, of the specific fact that the train would not move within 30 seconds. A person who sees a train across a highway knows that it is dangerous to attempt to cross the track at that time; and while the lowering of the gates accentuated this fact, it does not give any particular information. Therefore the notice arising from the lowering of the gates did not afford protection equal to that intended by the statute, and does not supersede the necessity for complying with its requirements."

Under the specific terms of the signal statute, the common-law defense of contributory negligence is eliminated from our consideration. The language of the statute (section 4925, Civ. Code 1922) is that, if the failure to give the specified signals contributed to the injury, liability for all damages caused by the collision is imposed upon the railroad company unless, "in addition to a mere want of ordinary care," it is shown that gross or willful negligence or unlawful act, chargeable to the person injured, contributed to the injury. Negligence signifies inattention, or, in other words, an unconscious failure to realize the danger...