Jennings v. McCowan

• Decision Date: 10 June 1949
• Docket Number: 16228.
• Citation: 55 S.E.2d 522,215 S.C. 404
• Parties: JENNINGS v. McCOWAN et al.
• Court: South Carolina Supreme Court

55 S.E.2d 522

215 S.C. 404

JENNINGS v. McCOWAN et al.

No. 16228.

Supreme Court of South Carolina

June 10, 1949

Dargan, Paulling & James, Darlington, John F Wilmeth, Hartsville, Woods & Woods, Marion, for appellants.

Tison & Miller, Bennettsville, N. Walser Edens Bennettsville, Mozingo & Watts, Darlington, J. P Gardner, Darlington, for respondent.

TAYLOR, Justice.

Action in this case was commenced on January 22, 1948 by respondent G. B. Jennings, as Administratrix of the Estate of Luther W Carter, deceased, against W. J. McCowan, G. R. Mims, O. K. Scott and Atlantic Coast Line Railway Co. in the Court of Common Pleas for Darlington County, wherein she demanded judgment against the defendants for the sum of $100,000.00 damages, arising out of the death of the intestate L. W. Carter, as the result of injuries sustained by him in a collision of one of defendant's railway company trains with a Chevrolet coach being driven in a northerly direction along U. S. highway 15-A at Society Hill, S. C. The complaint alleged that the collision and resulting death of the intestate, L. W. Carter, were due to the negligence, recklessness, wilfulness, wantonness and unlawful acts of the defendants in certain particulars.

Defendant, O. K. Scott, fireman of the train, was never served with the complaint or summons and the trial judge directed a verdict as to W. J. McCowan, the conductor of the train. The defendants, G. R. Mims and Atlantic Coast Line Railway Co., after admitting certain parts of the complaint and denying others set up by way of affirmative defenses, contributory negligence, recklessness, wilfulness and wantonness on the part of the deceased, Luther W. Carter.

The case was tried before Honorable J. Woodrow Lewis, presiding judge of the Court of Common Pleas, Darlington County, and a jury on May 12, 1948. Appellants made timely motions for a nonsuit and directed verdict which were refused. The case was then submitted to the jury which rendered a verdict for the respondent in the sum of $70,000.00 actual damages and $15,000.00 punitive damages, appellants then moved for judgment non obstante veredicto or for a new trial in the alternative, which was also refused.

Appellants now appeal to this court and we will consider the questions raised, in the order appellant does in his brief. The first question is whether or not any or all of appellants' motions for nonsuit, directed verdict, judgment non obstante veredicto or a new trial in the alternative should have been granted.

It is well settled that in determining whether or not there was error in refusing to grant motions for a nonsuit or directed verdict we must adopt the view of the evidence most favorable to the verdict and give it the strongest probative force of which it will admit. Langston v. Atlantic Coast Line R. Co. et al., 197 S.C. 469, 15 S.E.2d 758; Haselden v. Atlantic Coast Line R. Co. et al., 1949, 214 S.C. 410, 53 S.E.2d 60.

Plaintiff's intestate, a man fifty-six years of age, while traveling north on highway 15-A near Society Hill in Darlington County, S. C., on the 29th day of January, 1946, at approximately 6:30 P.M., approached the point at which the defendant railway company's tracks (main track and spur track) cross said highway at which they maintain automatic lights and stop signals. The tracks being parallel and approximately thirteen feet apart the automatic stop signal serves both tracks. Deceased was familiar with this crossing in that he was employed by the defendant railway company as bridge or trestle builder and for sometime prior had traveled this route twice daily from Bennettsville, S. C., where he maintained his residence. On this occasion it was dark but the weather was fair. The engine involved in the accident operated from Wadesboro, N. C., to Florence, S. C., and was engaged in shifting operations at the time of the collision. All cars having been disconnected from the train except one car loaded with brick which was being shifted from the brickyard to the main line where the rest of the train was located, deceased was driving on the right side of the highway and struck the engine approximately where the pilot and engine join, bending the step located at the front end of the cylinder, the pilot lacking about three feet reaching the opposite side of the paved portion of the highway.

Mrs. Dalrell Odom, the only eyewitness not connected with either party, testified that she lives and operates a filling station immediately adjacent to this crossing and that on the night in question she was in front of the filling station and witnessed the collision, that the engine with one car attached came from the left and neither blew the whistle nor range the bell as it approached the highway. That she had had about fifteen years experience driving a car and she estimated that the deceased Mr. Carter was driving at approximately 25 miles per hour and was 'slowing down all the time'. That the train was traveling approximately 35 miles per hour. That immediately prior to the collision the signal lights were not operating. That she lived there approximately twenty-three months prior to the collision and had ample opportunity to observe the operation of the signal lights and they come on when the train is 'almost on the highway', when operating on the spur track (as it was on this occasion). That she was drawing a gallon of kerosene from the tank and hearing a car on the highway looked and saw Mr. Carter look up and down the tracks before attempting to cross, at the same time slowing down. That the train could not be seen by one traveling along the highway until a point in front of the filling station had been reached and that there is only a narrow dirt road which leads to the Atlantic Coast Line Railway depot between the filling station and the railroad right of way. She further testified that the headlight on the train was an 'orange color * * * it was a dim light; it was not bright.' A portion of Mrs. Odom's testimony appears as follows:

'Q. Now will you describe for the benefit of the court and jury where your station is located? A. Well, as you leave Society Hill going towards Bennettsville on U. S. 15-A, you pass several houses sitting on the left and a pine thicket behind those houses before you reach the Shell station where I was operating and there is a railroad right there.

'Q. The Shell station you were operating and those houses and pine thicket you are talking about going towards Bennettsville from Society Hill, will you tell us what side of the road that is on? A. It is on the left.

'Q. What direction was the train coming from that collided with the auto in which Mr. Carter was riding? A. On the left, coming from that direction towards the railroad track.

'Q. Will you tell us when is the first time a person can see a point we will say fifty feet up the track after you pass the station? How close would you be then to the railroad track? A. About a span and a half.

'Q. You say a span and a half, what are you referring to? A. Well, those black streaks that run across the highway.

'Q. On this particular night did you see the collision between the auto and the train? A. Yes I did.

'Q. Where were you at the time of the collision? A. Standing in front of the station.

'Q. Did the train or any person on that train blow a whistle or ring a bell at any time within a distance of five hundred yards or more from that cross roads? A. No, they did not.

'Q. What is the condition of your hearing? A. It is good.

'Q. If it had blown the whistle or rung the bell would you have heard it? A. Yes.

'Q. Was there anything going on around there that would have prevented you from hearing it if it had blown the whistle or rung the bell? A. No, sir.

'Q. Now will you tell us, do you drive an automobile? A. Yes.

'Q. About how long have you been driving? A. About fifteen years.

'Q. Do you know generally about the speed of autos? A. Well, I guess I do.

'Q. Can you tell us in your opinion how fast Mr. Carter was traveling when you were in front of the station? A. Yes.

'Q. Will you tell us about how fast he was driving? When he passed in front of you? A. He was driving about twenty-five miles an hour, when he passed me.

'Q. Did you see the train before it hit him? A. Yes.

'Q. Will you tell us how fast in your opinion that train was being operated at the time of the collision? A. That train was driving about thirty-five miles an hour.

'Q. Now Mrs. Odom, I believe they have what they call blinker lights at that cross roads? A. Yes.

'Q. This station, your station is directly across from the chair factory? A. Yes.

'Q. And that is just before you get to the crossing going in the direction that car was going? A. Yes.

'Q. Now were those lights operating at the time of the collision or any time immediately prior thereto? A. No, sir.

'Q. Do you know that of your own knowledge? A. Yes.

'Q. Have you in the past or how long did you live in Society Hill? A. Twenty-three months.

'Q. And did you stay at the same place all of that time? A. Yes, the same place right there.

'Q. Will you tell whether or not you have had occasion from time to time to see trains cross that crossing coming across on the track that this train was coming on? A. Yes, sir.

'Q. What or when does that light start operating when a train on that particular track approaches the highway from the direction that this train was coming that night? A. Well, it is almost to the brickyard, when it is almost on the highway.

'Q. I believe there is a brickyard beyond the track? A. Yes.

'Q. Will you tell which track it was that the train was on? A. It was on the spur track coming from the brickyard. It had been to the brickyard and was coming out.

'Q. Do you know generally how that track is...