Gregg v. Atlantic Coast Line R. Co.

• Decision Date: 11 October 1926
• Docket Number: 12079.
• Citation: 134 S.E. 912,137 S.C. 40
• Parties: GREGG v. ATLANTIC COAST LINE R. CO. et al.
• Court: South Carolina Supreme Court

134 S.E. 912

137 S.C. 40

GREGG v. ATLANTIC COAST LINE R. CO. et al.

No. 12079.

Supreme Court of South Carolina

October 11, 1926

Appeal from Common Pleas Circuit Court of Florence County; E. C Dennis, Judge.

Action by W. Cicero Gregg against the Atlantic Coast Line Railroad Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Cothran J., dissenting.

The following are defendants' exceptions 5 to 12:

"(5) His honor, the trial judge, erred, it is respectfully submitted, in charging the jury in commenting on defendants' request No. 1, as follows: 'I charge you that, I go further than that, if you find that the railroad didn't give the signals required by law and that failure to give those signals contributed to the injury, that is sufficient'-the error being that he failed to state in this immediate connection that plaintiff's gross negligence or gross willfulness in going upon the track would defeat his action, even if the signals were not given, and the failure to so state may have influenced the jury to find for plaintiff.

"(6) His honor, the trial judge, erred, it is respectfully submitted, in refusing to charge the jury, as requested by defendants in their third request, which was as follows, to wit: 'If you should find from the testimony in this case that plaintiff's servant, the driver of the car, or other persons in the car, saw defendant's train fast approaching and attempted to cross immediately in front of same, when so to attempt to cross would be an obviously dangerous, reckless, or wanton act to a person of ordinary prudence and care, I charge you as a matter of law, that even though the acts of the defendant in failing to give the signals required by statute or otherwise, were willful, wanton, or reckless, such acts on the part of the plaintiff would constitute gross contributory negligence, recklessness, and wantonness, and if such gross contributory negligence, recklessness, and wantonness on the part of the plaintiff, combining and concurring with the willfulness, wantonness, and recklessness of defendant, was a proximate cause of the injury to plaintiff, and without which it would not have occurred, your verdict must be for the defendant'-the error being that the request contained a correct statement of the law applicable to the case, and, if given, might have influenced the jury to find for the defendants.

"(7) His honor, the trial judge, erred, it is respectfully submitted, in commenting on defendants' request to charge No. 5 which was as follows, to wit 'The object of the statute in requiring signals to be given by a train approaching a crossing is to warn those about to use the crossing of the approach of a train, but if one sees or hears a train approaching, without the signals having been given, and attempts to pass over immediately in front of such train, then it cannot be said that the failure to give the required signals was the proximate cause of any injury that may have been sustained by collision with the train at such crossing7D-and in using in his comments the following language, to wit: 'Of course, if the failure to give the signals, as I directed you just now, didn't prevent a party from seeing a train why you would then go further and say-well, could the failure of that company to give these signals, could it possibly contribute to the injury? You have got to find that the failure to perform the duties contributed to the injury'-the error being that these comments and the connection in which they were made naturally and normally would have had the effect of leading the jury to understand that the mere fact that the signals were not given, and that the failure to give them may possibly have contributed to the injury, was sufficient to entitle plaintiff to recover, regardless of his own gross negligence or gross willfulness as a contributing cause of such injury.

"(8) His honor, the trial judge, erred, it is respectfully submitted, in charging the jury in commenting upon defendants' request No. 9, as follows, to wit: 'The train has no more right to use the crossing than an individual has, but the train has the right of way, to this extent, that it is not required to stop for an automobile or buggy or wagon to cross. That is, between the vehicle on the dirt road and the railroad train, the vehicle is the one required to stop and not the railroad train. To that extent it has the right of way. Otherwise, it has no more right to use that crossing than an individual. And the same thing applies as to its being a place of danger to a trainman and a traveler. It is no more so to one than the other, except that there are certain rules and laws that regulate the operation of a railroad train'-the error being that the train has a higher right on the tracks of the railroad company even at a highway crossing than a person traveling the highway, and that the comments of the trial judge had a tendency to mislead the jury into a belief that there is no higher duty imposed upon a person using a public highway to look for an approaching train than that imposed upon the employees in charge of a train to look for an approaching person in the highway.

"(9) His honor, the trial judge, erred, it is respectfully submitted, in refusing to charge defendants' request No. 11, which was as follows, to wit: 'I charge you, as a matter of law, that on the question of culpability in crossing a railroad without looking and listening, the true inquiry is whether the plaintiff could, by the reasonable use of his senses in the performance of his duty to look and listen under the surrounding circumstances, have discovered the approaching train in time to avoid the accident'-the error being that this request contained an established principle of law pertinent to the issues in the case and sustained by the decisions of this court, and defendants were entitled upon request therefor to have the jury so instructed.

"(10) His honor, the trial judge, erred, it is

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