Hicks v. Atlantic Coast Line R. Co.

• Decision Date: 29 June 1938
• Docket Number: 14709.
• Parties: HICKS v. ATLANTIC COAST LINE R. CO. et al.
• Court: South Carolina Supreme Court

197 S.E. 819

187 S.C. 301

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

No. 14709.

Supreme Court of South Carolina

June 29, 1938

Appeal from Common Pleas Circuit Court of Florence County; M. M Mann, Judge.

Action by Sallie M. Hicks, as administratrix of the estate of J. B Hicks, deceased, against the Atlantic Coast Line Railroad Company and Marshall Stubbs for death of plaintiff's intestate who was killed at a crossing when struck by a train owned by the first-named defendant and operated by the second-named defendant. From a judgment of nonsuit, plaintiff appeals.

Judgment sustained.

McEachin & Townsend, of Florence, for appellant.

Willcox Hardee & Wallace, of Florence, and Woods & Woods, of Marion for respondents.

A. L. GASTON, Acting Associate Justice.

This action was commenced on February 6, 1937, upon a cause of action for damages for the wrongful death of J. B. Hicks at a crossing of defendant Company's track and the ice plant road in the outskirts of Hartsville. The complaint alleges that no statutory crossing signals and no warning of any sort were given, and no effort was made to stop after discovery of plaintiff's intestate on the track. The defendants answered, denying the material allegations of the complaint and alleging gross contributory negligence on the part of the plaintiff's intestate.

The case was tried before Judge Mann and a jury at the February (1938) term of the Court of Common Pleas for Florence County and resulted in an order of non-suit on the ground that the plaintiff's intestate was guilty of such gross contributory negligence in walking into the side of the defendant's train as to preclude recovery of damages for his death.

The appeal is taken from the order of non-suit and judgment thereon.

The complaint alleges in paragraph 4, "That on December 7, 1936, at or about 9:10 A. M., the plaintiff's intestate started from the ice plant near Hartsville, S. C., toward the railroad crossing with the road from the ice plant; that, as the plaintiff's intestate stepped upon the crossing of the ice plant road with the Atlantic Coast Line track, suddenly and without warning or signal of any sort, the Atlantic Coast Line train, while running at a high, dangerous and reckless rate of speed, headed toward the Y-Switch and under the control and in charge of the defendant, Marshall Stubbs, as engineer, who was not keeping a proper lookout, struck down plaintiff's intestate, inflicting such serious injuries upon him as to result in his death in a Hartsville hospital about two hours later."

"That the death of plaintiff's intestate was the direct and proximate result of the combined and concurrent negligence, and wilfulness * * * of the defendants acting together and combining to that end," in the particulars set forth.

The answer alleges as an affirmative defense that, "A train of the defendant Company, the locomotive of which was being operated by the defendant, Marshall Stubbs, as engineer, was traveling along one of the tracks of the defendant Company, in the Town of Hartsville, at a moderate rate of speed, and that although all reasonable signals were being given, and although there was absolutely no obstruction of his view, J. B. Hicks, plaintiff's intestate, walked deliberately upon the track on which the said train was travelling and while it was in such close proximity to him that it was impossible to stop the said train after it was realized that the said J. B. Hicks was going in front of it and before the train reached him, and that as a result the said J. B. Hicks was struck and injured by the said train as a result of which injury he died. Defendants allege that in so placing himself upon a railroad track immediately in front of an approaching train, the said J. B. Hicks did not take the slightest precaution for his safety, but on the contrary acted in a careless and willful, grossly negligent and grossly willful manner, and that such conduct of the said J. B. Hicks contributed as a proximate cause thereof to his injury and death, and that without such conduct on his part he would not have been injured and the defendants plead the contributory negligence, the contributory gross negligence, and the contributory willfulness and recklessness of the said J. B. Hicks in bar of this action."

Plaintiff's testimony developed the facts as to the injury and death of J. B. Hicks. At the time of this accident he and his wife were living in Hartsville on Miller Avenue, and had been living there thirteen years. They had five grown children. Mr. Hicks was employed at the ice plant in Hartsville and had been for over a year prior to his death. The evidence does not show exactly the amount of his salary, but he brought home $13 every Saturday night for his work as millright and blacksmith. On the day of the accident he was to come back home and bring tools to fix a pump.

The deceased, who would have been fifty-seven years of age in September after the accident, went to and from his work daily using the crossing where he was injured. A blue print of the place was put in evidence. The plat does not indicate the points of the compass, unless the arrow directed to the bottom of the plat is intended to designate that part as north, contrary to the usual rule that the north is toward the top of any plat. However this question is not essential now, but explains any difficulty in referring now to such directions on the plat. The dirt road leads from the ice plant, at an angle towards and across the tracks of the A. C. L. Railroad Company and of the S. A. L. Railway Company. Both Railroad Companies maintain a Y-track opposite and beyond the ice plant. At the crossing of the dirt road and the A. C. L. Y-tracks there is solid boarding as shown by the blue print. The deceased was hit at this crossing. He was walking and came along this dirt road from the ice plant, with the defendant Company's track to his left, in a diagonal direction to the point where the crossing is located. The engine and passenger train of the defendant Company were approaching the crossing coming along its track, from the direction of the ice plant, so that the engineer sitting on his right hand side of the engine would have full view of the ice plant, the dirt road, the crossing, and the pedestrian as he walked toward the track, and towards the approaching train. The approaching train would be behind the deceased on his left hand side, until they met at the crossing. He could see the train by turning his head one-third or more of the way around before it hit him, or before he stepped on the track. He did not look. Let the only eye witness to testify speak here, on cross examination:

"Q. How far was the engine from Mr. Hicks when Mr. Hicks stepped on the railroad? A. It was right at him. That hot box on the side more than apt hit him and slung him under the driving shaft. It hit him on the left side and slung him under the front drive shaft.

Q. Was that when Mr. Hicks stepped on the railroad, the engine was right on him? A. Yes, sir.

Q. Until he did take that step, he was not in front of the train? A. He was in front of it, but he could not saw it. If he had saw it, he would have got out of the way of it.

Q. He didn't saw it because he didn't look? It was right there for him if he had looked? A. He would have had to turn around, and it would have hit him in the front.

Q. Before Mr. Hicks stepped on the track, immediately before he stepped on the track and in the place of danger, how far was the engine from him then? A. I would say then about six yards. Time he stepped the engine hit him.

Q. Time he stepped on the track? A. Yes, sir.

Q. As Mr. Hicks stepped on the track the engine was right there? A. Yes, sir."

His life blood was spilled on the ties and on the outside of the track for a distance of seventy-three feet; mute evidence of the inexplicable mystery of human lack of foresight, and the certainty of danger, and often death, under the wheels of a moving train at a road crossing.

Let the thirty-four year old son of the plaintiff's intestate speak here as a witness:

"Q. Were there any signs on this crossing to indicate where your father was struck? A. There were signs right in the crossing, about eight or ten feet from the end of the crossing boards there where it knocked his feet down and dug into the dirt, and the only sign then was on out past the switch. It was just beyond this point here where they pulled him out from under the train and on the cross ties was blood.

Q. Did you measure the distance from the signs here to the place where the blood was,...