Jacobs v. Atlantic Coast Line R. Co.

• Decision Date: 02 October 1928
• Docket Number: 12505.
• Citation: 145 S.E. 146,147 S.C. 184
• Parties: JACOBS et al. v. ATLANTIC COAST LINE R. CO. et al.
• Court: South Carolina Supreme Court

145 S.E. 146

147 S.C. 184

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

No. 12505.

Supreme Court of South Carolina

October 2, 1928

Cothran J., dissenting.

Appeal from Common Pleas Circuit Court, Chesterfield County; C. C Simms, Special Judge.

Action by Willie A. Jacobs and another, administrators of Nephi Jacobs, against the Atlantic Coast Line Railroad Company and another. From an order of nonsuit and from a directed verdict for defendants, plaintiffs appeal. Reversed and remanded for new trial.

The grounds of the motion for a directed verdict, and the remarks of the lower court in sustaining it, follow:

Motion for Directed Verdict.

Mr Murray: If your honor pleases, the defendant Atlantic Coast Line Railroad Company moves for a directed verdict, on the following grounds:

1. That there is no evidence here that the defendant had violated any of the laws of this state, or ordinances of the town of Cheraw, or rules of the company; and that it is incumbent upon the plaintiff not only to show the act complained of as being negligent, constituted negligence, but that such negligence was the proximate cause of the injury and there is an entire failure of proof.

2. That even if the emission of steam was negligence, the undisputed evidence shows that such negligence was not the proximate cause of the injury and death of the plaintiff's intestate.

3. That the undisputed evidence shows that the injury and death of the plaintiff's intestate was caused by the independent intervening act of Boyd Braddock, over whom this defendant had no control, in driving his automobile onto and over said crossing in the face of a cloud of steam, and Mr. Braddock's act in so doing was the proximate cause of the injury to plaintiff's intestate, and the emission of steam merely the remote cause, and this defendant is not liable for such injury and death.

4. That the negligence alleged, the emission of the steam, merely brought about a condition of affairs, or a situation, under which another and entirely independent and efficient agency (the act of Braddock) intervened and caused the injury, without which intervening act of Braddock the said injury would not have resulted, and this defendant is not liable therefor.

The defendant A. J. Johnson makes a motion for directed verdict on the same grounds.

The Court: Well, gentlemen, it is very interesting, as I said before. I have listened to a well-argued case. Because of my line of work directed almost entirely for nearly a half a century to suits by plaintiffs against corporations, and that kind of thing, has naturally led me to a sympathetic attitude towards plaintiffs in all these matters. I have thought over this case with a great deal of thought. In the still watches of the night I meditated over these requests. I read them yesterday afternoon, and considered them in all their phases, all of their ramifications, all their distinctions. It is more or less distinctions without a difference. I can see but little difference between the requests to charge offered by either side. The law seems to be almost fixed, as the laws of the Medes and Persians, immutable and unchangeable, and each decision seems to add to its fixity.

Now gentlemen, in discussing this matter, let's see the surrounding field, the locus in quo. Here is the defendant company, with its engineer, being sued for alleged negligence, from which the plaintiff's intestate, a little boy, met his death. We find in the testimony a picture of the scene there; the railroad station, the tracks around there, the Y's, the switches, and all of the scene is before us, undisputed. There are no acts of negligence alleged in this case which are made acts of negligence per se. We find the conductor of this train has been on this run, according to the undisputed testimony, for 25 years. The engineer for a less period possibly, but for a long period too. This run has been established, and its rules have been established, for a long period of time. The people surrounding that scene have lived with full knowledge of the schedules, the rules, the customs of the railroad with reference to that train. The train comes in at night from Florence, its boilers are emptied, or at least the steam expires during the night, it is renewed in the morning, with, of course, a great deal of noise and more or less smoke or steam in starting, of which fact the court takes judicial notice, because a locomotive engine has to run with steam, and the public there had notice of it, and were fully advised of all of the surrounding circumstances for years. They knew of the emission of the steam there in more or less quantities, sometimes obscuring the vision, and every one has been acting with reference to those well-known and established conditions. On this fateful morning, we find that the engineer and conductor, pursuing the custom of 25 years, got their train ready, backed down to this crossing, emitted steam apparently on that occasion in more or less greater degree than usual, due to the alleged cloudy day, departed without knowledge of any accident on their way to Florence, knew nothing about any accident, and left behind them a cloud of smoke and vapor. That cloud and vapor was there recognized by everybody as only a temporary obstruction, which the rays of the sun would soon clear up or dispel. Before that could happen, however, a young man in his car, subject to the regulation of the law that he should stop, look, and listen, and, accepting those conditions, had stopped, and supposedly had looked and listened, and seeing this density of smoke he was in perfect safety. But he was charged with the knowledge of the fact that it was a dangerous thing for him or any one else to go into that cloud of smoke, as to other passengers that might be approaching from either side. The railroad company had nothing to do with what passed in his mind. They were not present, and nothing but this evanescent cloud of smoke was there to represent any alleged negligence of the railroad company. He goes through that cloud of smoke, and he meets this infant, this child. He does not know it, and the first knowledge he has of it he hears the crunching of his death-dealing machine upon the flesh and body of this infant, that turns out to be his own flesh and blood. It is a sad thing to him and to the family. But the railroad company had pursued that same course for 25 years without accident; human railroad experience had shown that the method pursued had been without danger. This was an unusual accident, could not be foreseen by any one of ordinary care and prudence, whether engineer or any other human being. He left the smoke there as he had done previously, I apprehend, and that was his only connection with this trouble, this pillow of cloud that morning left by the railroad company that morning in the usual method of getting up steam for the contractual obligation it had with the public in making its schedule from Cheraw to Florence. Now, I can't conceive of any negligence arising from the railroad company in this instance. There was a cloud of smoke, there was a man in his car sitting in perfect safety, going into this cloud of smoke, meeting the child of his own blood, killing him. The railroad train was not there; but here was an automobile on the public road, this traveled or public road, and coming in contact with the cloud and going through the cloud, whether it was a cloud of sand or smoke or steam, or however it was left there, was sufficient to have made him responsible for any act that might have happened there from his going through it without using precautionary measures. And it looks to me that it was an independent act entirely, for which the railroad company was in no wise responsible. I can't see how they could, in any method of conjecture, be held, after their 25 years of continuous service, the same people on the same run, and everybody around there acquainted with the methods. This man himself testified that he was in the business of running a truck. I do not see where the railroad company had anything to do with the accident. It happened, it is true, upon their track, it happened by travelers upon the public highway, and they sue the railroad for it, just like they would sue a person who made a cloud of dust on the road ahead of you, because you have not exercised the proper care and caution in avoiding the cloud of dust that was kicked up by a previous automobile, and try to hold somebody else responsible because of a collision that was caused by the cloud of dust that was put up by some one else. How was the railroad company responsible? True, they put the cloud there; but it is also true that it was temporary, a temporary obstruction only, an obstruction put up in the usual course of their duties to the public in making their schedule. It was so casual and usual that it did not require them to surround it with any remarkable precaution; to have a watchman out there to guard people who knew all about its schedules, to tell them, "There is a cloud of smoke," to say to them, "You must not pass until the cloud passes," when their human senses would teach them that the sun would relieve the situation in a moment if they would only be patient. It seems to me that it is simply one of those awful cases of the mad rush going on in this country-men, women, and children, boys and girls, lawyers, doctors, merchants, preachers, every class of people. Drunken men and sober men all seem to be auto-intoxicated. When they get into a machine, death-dealing machine, they kill more people than the great war has probably killed; do it everyday, recklessly pursuing their way on the public thoroughfares. And it is another one of those cases that appeals to the court as being...