Johnson v. Atlantic Coast Line R. Co.

• Decision Date: 26 June 1950
• Docket Number: 16375.
• Citation: 60 S.E.2d 226,217 S.C. 190
• Parties: JOHNSON v. ATLANTIC COAST LINE R. CO.
• Court: South Carolina Supreme Court

60 S.E.2d 226

217 S.C. 190

JOHNSON v. ATLANTIC COAST LINE R. CO.

No. 16375.

Supreme Court of South Carolina.

June 26, 1950

Paulling & James, Darlington, for appellant.

Samuel Want, James S. Verner, Sam Rogol, Leroy M. Want all of Darlington, for respondent.

OXNER, Justice.

This action was brought to recover the sum of $80, the value of two calves which respondent alleged were killed by the negligent operation of one of appellant's trains.Appellant entered a general denial except as to the formal allegations of the complaint.The case was tried before a magistrate and jury.At the conclusion of the evidence, the magistrate directed a verdict for appellant upon the ground that the presumption of negligence arising from the killing of the calves was completely rebutted by the uncontradicted testimony of the employees of the railroad company.On appeal by respondent to the Circuit Court, it was held that the magistrate erred in directing a verdict and that the question of negligence should have been submitted to the jury.The Circuit Judge while conceding that 'there was no direct evidence of negligence' on the part of appellant, concluded that the presumption of negligence arising from the proof of the fact that the calves were killed by the train should be given the force of evidence to be weighed against the testimony of the railroad employees.On this appeal by the railroad company from the order of the Circuit Judge granting a new trial, it is contended that there was no evidence of negligence to be submitted to the jury and that the view adopted by the Circuit Judge contravenes the constitutional guaranty of due process and equal protection of the laws.

It is admitted that the calves belonging to respondent were struck and killed by a freight train of appellant about 11:30 A.M. in December 1948.Respondent, who lives near the right of way, testified that these calves were left in his pasture and by some means unknown to him escaped and were killed by one of appellant's trains.He relied on a presumption of negligence from this fact.The only eyewitnesses were the engineer and fireman who testified for appellant.There is no material conflict in their testimony, which was substantially to the following effect:

The train consisted of 25 or 30 freight cars and was traveling about 25 miles an hour on a level track.It was a clear day.The calves were first seen when about 300 feet ahead of the engine which had just rounded a curve.They were then 'coming up the side of an embankment' on the left side of the track and could not have been observed earlier because 'they were back behind the fill.'The area on the left side of the track was wooded.As soon as the calves were seen, the engineer 'immediately put on the emergency brake and blew the whistle and had the steamcocks opened to make a noise, but they(calves) came right on in front of the engine.'When the engine was about 100 feet away, the calves got in the middle of the track and started running.After striking them, the train traveled a distance of approximately 300 feet.The engineer and fireman stated that this train could not have been stopped in less than about 800 feet and that they did everything possible to avoid injuring the cattle.

The foregoing testimony of the engineer and fireman was all that was offered on the issue of negligence.No reply testimony was offered by respondent.

The applicable rule to a case of this kind was first established in this state in Danner v. South Carolina Railroad Co., 4 Rich. 329, 55 Am.Dec. 678, decided in 1851.It was there held that although the burden of showing negligence on the part of the railroad company is upon the plaintiff, where he proves that his cattle were killed by a railroad train, he makes out a prima facie case of negligence and the burden of going forward with the evidence and making a satisfactory explanation rests upon the railroad company.In that case the railroad company offered no evidence and gave no explanation.The rule was adopted from necessity because ordinarily the circumstances surrounding the destruction of the cattle are only known to the railroad comployees.Very few courts in other jurisdictions have adopted or followed this rule.However, in a number of states statutes have been enacted making proof of an injury to an animal by a railroad train prima facie evidence of negligence and placing the burden upon the railroad to rebut the presumption of negligence.It was not long before the soundness of the rule in Danner's case was vigorously challenged by the railroads and on numerous occasions they have sought to have that case overruled.This Court has consistently refused to do so and the rule has remained in effect for a period of approximately a hundred years.In Jones v. Columbia & Greenville R. Co.,20 S.C. 249, it was held that the rule in Danner's case was not abrogated by the enactment in South Carolina of the 'stock law' requiring the landowner to fence in his cattle, although it was stated in Molair v. Port Royal & A. Railway Co.,29 S.C. 152, 7 S.E. 60, 64, that the existence of the stock law 'is an element to be taken into account in considering the question of negligence.'

The rule in Danner's case seems to have been regarded in the nature of a rule of evidence until the decision of the Court in Joyner v. South Carolina R. Co., 26 S.C. 49, 1 S.E. 52, 55.The Court was there called upon to determine the weight to be attached to the presumption where the railroad company offered evidence tending to show an absence of negligence.A majority of the Court concluded that the presumption is not confined to cases where the defendant offered no evidence or made no explanation but 'remains of controlling force until the defendant's evidence overthrows it by showing either due care, unavoidable accident, or something of that kind.'It was there held that the presumption should be regarded as evidence to be weighed against any evidence of due care offered by the railroad company.Justice McIver filed a vigorous dissent in which, after stating that the mere fact that cattle were killed by a railroad train does not reasonably warrant in inference of negligence, he said: 'The true view of the matter is that the artificial rule of evidence, established by Danner's case, can only be available in the absence of testimony derived from the usual sources; but, where such testimony is adduced, then the jury must draw their conclusions from that testimony, as in all other cases.'

It is apparent that the rule originally adopted in Danner's case was materially enlarged and extended by a majority of the Court in the Joyner case.Since the latter decision, however, it has uniformly been held that the presumption of negligence arising from proof of the cattle being killed by the railroad train is evidence to be weighed by the jury against unimpeached, positive testimony of the railroad employees showing due care and that the accident was unavoidable.Ritter v. Atlantic Coast Line R. Co.,83 S.C. 213, 65 S.E. 175;McLeod v. Atlantic Coast Line Railroad Co.,93 S.C. 71, 76 S.E. 19, 705;Perryman v. Charleston & W. C. Railway Co.,105 S.C. 34, 89 S.E. 497;Ervin v. Atlantic Coast Line R. Co.,106 S.C. 354, 91 S.E. 317.In Moorer v. Atlantic Coast Line R. Co.,103 S.C. 280, 88 S.E. 15, it was held that the presumption of negligence established by these cases did not constitute a denial of due process of law.

McLeod v. Atlantic Coast Line Railway Co., supra, involved an action to recover the value of a mule killed by one of defendant's trains.The plaintiff relied entirely upon the presumption of negligence arising from the fact that the mule was killed.To rebut this presumption, the defendant introduced the testimony of the engineer of the train to the effect that the train was running at a regular speed, and that the mule came on the track from behind a hedge or embankment so suddenly that it was impossible to stop the train before striking him.The defendant contended that its evidence so conclusively rebutted the presumption of negligence that no other reasonable inference could be drawn than that it exercised due care.The Court held that the issue of negligence was properly submitted to the jury.It was pointed out that the testimony as to due care came from the engineer, an employee of the defendant, to whom the negligence, if any, would be chargeable, and it was said that the interest of this witness was such that the credibility of his testimony should be submitted to the jury.In denying a petition for a rehearing, the Court said: 'A plaintiff, whose stock has been killed by a railroad train, has the right to have the jury consider the force of the presumption in his favor, as testimony against the account of the accident given by the railroad employe.It was to protect him from being absolutely bound by the testimony of the railroad employes that the rule as to the presumption of the negligence was adopted.'

It must be conceded that the order of the trial Judge is fully sustained by McLeod v. Atlantic Coast Line R. Co., supra, and other like cases.Appellant has sought and been granted permission to argue against the McLeod case.It is said that this case is inconsistent with the decision of the United States Supreme Court in Western & Atlantic R. R. v. Henderson et al., 279 U.S. 639, 49 S.Ct. 445, 446, 73 L.Ed. 884.

'The federal guaranty of due process extends to state action through its judicial as well as through its legislative, executive, or administrative branch of government.'Brinkerhoff-Faris & Trust & Savings Co. v. Hill,281 U.S. 673, 50 S.Ct. 451, 454, 74 L.Ed. 1107.We are satisfied that the rule as promulgated in Danner's case does not contravene the constitutional...