Horne v. Atlantic Coast Line R. Co.

• Decision Date: 13 August 1935
• Docket Number: 14126.
• Citation: Horne v. Atlantic Coast Line R. Co., 177 S.C. 461, 181 S.E. 642 (S.C. 1935)
• Parties: HORNE v. ATLANTIC COAST LINE R. CO. et al.
• Court: South Carolina Supreme Court

181 S.E. 642

177 S.C. 461

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

No. 14126.

Supreme Court of South Carolina

August 13, 1935

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

Action by Maud Ford Horne, as administratrix of the estate of Joe Ford, deceased, against the Atlantic Coast Line Railroad Company and another. From a judgment of nonsuit, plaintiff appeals.

Affirmed in part and reversed in part.

McEachin & Townsend, of Florence, for appellant.

F. L Willcox, of Florence, for respondents.

FISHBURNE Justice.

Reversing the usual order somewhat, we first state the testimony in this case, which is here upon appeal from an order of nonsuit.

On March 15, 1934, I. L. Ford, a section foreman of the defendant Atlantic Coast Line Railroad Company, and three negro section hands, returned from their work about 4 o'clock in the afternoon to their homes at Pine Island, a station on the main line of defendant's railroad between Conway, S. C., and Myrtle Beach, S.C. They rode upon a motorcar to which was attached what is described as a small flat car or push car, upon which had been placed six or eight old crossties taken from the roadbed in connection with their work. Upon reaching Pine Island station, the motorcar was detached, lifted from the rails, and placed in the tool house. I. L. Ford then opened the switch leading from the main line to a pass track, and the push car loaded with the crossties was pushed onto the pass track by the negroes for a distance of approximately 225 feet, where it came to rest against a flat car upon which logs were to be loaded. Before reaching this station, Ford saw the regular freight train of the defendant railroad approaching from Conway, running on its regular schedule. When first seen by him it was about six miles away, and the motorcar and the push car were moved in order that the oncoming freight train might have a clear and unobstructed passage on the main line.

A portion of Ford's testimony, describing his acts and conduct at the switch, follows:

" Q. After the car (push car) went in there did anything happen to you? A. No, sir; any more than Mr. Miller come up when I turned the switch back-when I rolled the car in-when the men rolled the car in, I throwed this switch back is my recollection of it, and Mr. Miller, a man loading piles there for a logging company called to me-and it was a switch that didn't turn around-just an old ball on it and you throw it over. I had it to fit tight with the main line. When I picked the ball up and throwed it back-and there was some latches that holds it-them latches fails to catch it, is my recollection of it. * * *

Q. When you threw the ball back, what happened when you threw the ball back? A. He called to me and asked me had I seen Mr. Huggins, his foreman, and I told him 'no.'

Q. Did you step back for any distance to talk to him? A. I stepped and turned to him, about as far as from here to the Judge-I stepped it-not over two steps.

Q. What happened while you were talking to him? How long were you talking to him? A. Not over four or five minutes.

Q. What happened while you were talking to him or as you concluded your conversation with him? A. The train come and went in the sidetrack.

Q. When you threw the ball back or the switch lever, did you look and see whether or not it had caught and the switch closed? A. No, sir; I considered it closed. I wouldn't leave it open for anything.

Q. You didn't look at it after you threw it back? A. No, sir.

Q. You say the switch is constructed how? A. When you throw the ball over there is two little levers that catches the lever that goes into the ball-sometimes these little levers will fail to catch, and if that switch is tight-

Q. I want to know how the ball part of it is constructed to open and close the switch? How does it work? A. Pick it up and throw it over.

Q. Has it any weight on it? A. Just a ball about fifteen or twenty pounds.

Q. To open it you pick it up and turn it over in a half circle? A. Yes, sir.

Q. To close it you turn it back a half circle? A. Yes, sir.

Q. Latches on both sides? A. Yes, sir.

Q. Where you turn it over one way and turn it over the other way? A. Yes, sir.

Q. What signal arrangement is it on that switch? A. When you open the switch it automatically turns a red board.

Q. Explain how that red board is constructed? A. There is two sides of the board-one red and the other green. The switch is closed when it shows green. When it is open it shows red.

Q. How big is that target approximately? A. That one is something about that long (indicating about a foot and a half).

Q. That square? A. No, sir; that long.

Q. How wide would you say? A. Six or eight inches.

Q. When the switch is open that target shows red to the main line? A. Yes, sir; you can't open it without it showing red.

Q. When it is closed it is green to the main line? A. Yes, sir.

Q. What was the condition of that target on this day with reference to its point and visibility? A. Good.

Q. Did you make any measurements to see how far down that railroad track a person could stand and see that target plainly and discern the colors on it? A. Yes, sir."

He further testified that the engineer of the freight train, the defendant Bowie, should have seen, or could have seen, the red switchboard for a distance of 700 feet from the switch; and further that he had known switches of this type to be defective.

And so, with the switch open at his feet, the scene was set for the impending tragedy. The freight train came thundering along at a speed of about twenty miles an hour, entered the open switch, and collided with the push car, killing Joe Ford, the five year old son of the beneficiaries, I. L. Ford and Dannie Ivey Ford. The evidence shows that the child had climbed upon the push car about the time the switch was opened, or shortly prior thereto.

There is no specification in the complaint charging the railroad company with maintaining a defective switch. Testimony on this point must be disregarded; it was duly objected to, and the objection was properly sustained.

In his cross-examination, Mr. Ford testified that about the time he opened the switch, or immediately prior thereto, he saw his infant son, Joe Ford, crossing toward the push car. Mr. Ford was the particular employee of the railroad company charged with the duty of having this particular switch in such condition that the freight train could pass in safety on the main line on its way to Myrtle Beach; it was his special duty to close the switch after he had opened it. If he had looked at any time between the instant of opening the switch and the instant the train entered it, he could easily have seen that it was open.

This action was commenced in the court of common pleas for Florence county by Maude Ford Horne, as a administratrix of the estate of Joe Ford, deceased, on behalf of I. L. Ford and Mrs. Dannie Ivey Ford, the parents of the deceased child, against the Atlantic Coast Line Railroad Company and C. F. Bowie, who was the engineer in charge of the defendant's freight train, for damages, actual and punitive, in the sum of $50,000, for the alleged wrongful death of Joe Ford. The complaint contains allegations of various acts of negligence on the part of the defendant, based upon the following delicts: Failure to regard a signal board or target, after opportunity to observe it, in time to avoid the accident; failure to keep the proper lookout; defective brakes; failure to stop the freight train after observing plaintiff's intestate; and a general allegation of reckless inattention to road and track.

The answer contains a denial of the material allegations of the complaint, and sets up as a defense contributory negligence and gross and willful contributory negligence on the part of the parents of the child.

The cause came on for trial on November 7, 1934, before his honor, Judge C. C. Featherstone, and a jury, and resulted in a nonsuit on the motion of the defendants.

The plaintiff has appealed to this court upon seven exceptions, assigning error to the circuit judge on account of the granting of the nonsuit.

The motion by the defendants for a nonsuit was based upon three grounds: (a) That it appeared from the testimony introduced on behalf of plaintiff that the father, one of the beneficiaries named in the complaint, was proximately responsible for the fact that the switch was open; (b) that the mother was in charge of the child, charged with the duty of keeping him out of a position of danger, and therefore was negligent in permitting the child to be on a railroad track, and on a push car standing on the track at the time of the injury; and that but for the negligence of each there would have been no injury; and (c) on the additional ground that it appeared from their own testimony that both beneficiaries contributed to the injury, and that they, being the only beneficiaries, plaintiff as administratrix was not entitled to recover.

The motion was granted on the grounds that: (a) The proximate cause, that which set in operation the trend of events which resulted in the death of the child, was the failure of the father to properly manipulate the switch; and (b) "it was carelessness on the part of both father and mother, and looking at it from a broad standpoint, if they had done their duty, that child would not have been killed."

It has been held that if a parent fails to exercise reasonable or ordinary care in the control, management, direction, or protection of a child non sui juris, and such want of care whether by acts of omission or commission, directly contributes to the injury of the child by others, such contributory negligence on the part of the parent...