Johnson v. Charleston & W. C. Ry. Co., 17537

CourtUnited States State Supreme Court of South Carolina
Citation108 S.E.2d 777,234 S.C. 448
Docket NumberNo. 17537,17537
PartiesC. Birnie JOHNSON, as Administrator of the Estate of W. S. Herrington, Respondent, v. CHARLESTON AND WESTERN CAROLINA RAILWAY COMPANY, Appellant.
Decision Date19 May 1959

Brown, Jefferies & Mazursky, Barnwell, A. C. Todd, Greenwood, for appellant.

McNair & Lawton, Allendale, Randolph Murdaugh, Hampton, for respondent.

LEGGE, Justice.

Appellant's main line track and U. S. Highway 321 intersect in the town of Fairfax, S. C. About 1:00 o'clock a. m. on September 27, 1953, an automobile traveling north on said highway collided with appellant's freight train that was slowly moving across the intersection. W. S. Herrington, one of the occupants of the automobile, was killed; and this action was brought seeking damages for his alleged wrongful death. Verdict was for $67,618 actual damages. The appeal charges error in the trial judge's refusal of appellant's motions for nonsuit, directed verdict, judgment n. o. v., and new trial.

U. S. Highway 321 runs generally northward from Savannah, Ga. to Columbia, S. C. It passes, due south-north, through Fairfax. Appellant's main line track runs through Fairfax approximately southeast-northwest, crossing U. S. Highway 321 diagonally. Immediately to the south of this crossing, S. C. Highway 28, which parallels appellant's track, also intersects U. S. Highway 321. The north curb of Highway 28 is about fourteen feet from the near rail of appellant's track. Above the center of the intersection of the two highways is the usual highway blinker light, flashing red for traffic on 28 and yellow for traffic on 321.

Approximately three hundred forty-five feet southeast of its intersection with Highway 321, Highway 28 is crossed by appellant's side track. About four hundred forty feet northwest of its intersection with Highway 321, appellant's main line is crossed by the main line of Seaboard Air Line Railway, which runs south-north. Just beyond the Seaboard crossing, and to the south of appellant's line, is the tower of Seaboard Air Line Railway, which is manned by its telegraph operator.

Five miles northwest of Fairfax, on Highway 28, is the town of Allendale, S. C.; and there U. S. Highway 301, which runs southwest-northeast, intersects 28. About ten miles southwest of Allendale, Highway 301 crosses the Savannah River and enters Screven County, Georgia.

Appellant's train, headed northwest, had been engaged in shifting just prior to the accident. Its three-unit engine had stopped short of the Highway 321 crossing; had proceeded with one car to the Seaboard connection; had picked up some cars on appellant's storage track; and had then backed up and coupled to the cars that had been left on the main line just southeast of the highway intersection. The shifting operation thus completed, the engine, pulling seventy-four cars, proceeded across the intersection. The automobile struck the fifth car.

The automobile, a 1951 Ford, was owned by Mrs. Louise Odom, who lived with Mr. and Mrs. Herrington on their farm in Screven County, Georgia, a few miles west of the Savannah River. At the time of the accident it was being driven by Mrs. Odom's cousin, Wendell Zeigler, aged 23, also a resident of Screven County, Georgia. Mrs. Odom was on the front seat with him; Mr. and Mrs. Herrington were on the rear seat.

The only eyewitnesses to the accident were the occupants of the automobile. Zeigler did not testify. (It appears from the testimony of Mrs. Odom that he had come to Allendale for the purpose of attending the trial, but had been called back to his home in Miami, Florida, because of his child's illness.) The testimony of Mrs Odom and Mrs. Herrington was substantially as follows:

On Saturday night, September 26, Mrs. Odom invited Mr. and Mrs. Herrington to go with her to have supper at Pine Grove Inn, which is in Screven County, near the Savannah River. They left the Herringtons' home about 10:00 o'clock that evening, Mrs. Odom driving. At Pine Grove Inn, which was operated by Zeigler's mother, they met Zeigler, who had not had supper; and, since they could not get at Pine Grove Inn the seafood that they wanted, they decided to go on to Allendale. Zeigler offered to drive the car, to which Mrs. Odom agreed; and they proceeded on Highway 301 to Allendale, where they found no eating place open. They then took Highway 28 toward Fairfax, stopped briefly at a little eating place between Allendale and Fairfax, and, not being able to get there the kind of food they wanted, proceeded on to Fairfax. At the intersection of Highway 28 with Highway 321 they turned to the right on the latter to go to The Pig, an eating place located on Highway 321 about three miles south of Fairfax. Some ten years before, Mrs. Odom's brother had rented The Pig, and she had operated it for him for a few months. Not being able to get seafood at The Pig, they ordered sandwiches and coffee, which Zeigler got and brought to the car for them. After they had eaten the sandwiches and drunk the coffee, they started back on their way home. Zeigler, who was driving, was unfamiliar with the route, which he had used for the first time earlier that evening, and which on their return home he was to retrace.

A day or so before the accident, a hurricane had struck the area in which Fairfax is located; and the weather was still unsettled. It was not raining when they stopped at Pine Grove Inn; but when they reached Allendale it had begun to drizzle, and when they left The Pig a misty rain and fog had set in. According to both Mrs. Odom and Mrs. Herrington, the fog was quite low and heavy, and Zeigler was using dim headlights for that reason. Both of these witnesses testified that they saw the overhead highway blinker (at the intersection of 321 and 28); and that Zeigler, approaching it, slowed to between ten and fifteen miles per hour. Mrs. Odom testified that when they reached the blinker light she started to tell Zeigler to turn left into Highway 28, but that before she could do so the automobile, having crossed that highway, struck something, and she was knocked unconscious; that she knew nothing of the railroad crossing adjacent to and just north of Highway 28; that she did not see the freight car, which was unlighted and blended into the fog and darkness; that she saw no railroad sings, by light or otherwise, warning of the presence of the unlighted boxcar across the highway; and that she heard no bell or whistle. Mrs. Herrington testified that she was looking ahead as they approached the highway blinker; that there were no street lights in the vicinity, and the only light visible was the highway blinker; that the night was very dark and visibility poor by reason of the fog; that no warning of the presence of the freight car across the highway was given by flag or by lantern or other light; that she heard no bell or whistle; that if a bell had been ringing or a whistle blowing she would have heard it; and that she never did see the train. She lost consciousness after the collision.

Grover C. Forrester, the sheriff of Allendale County testified for the plaintiff as follows:

In September, 1953, he was a corporal of the State Highway Patrol, and was stationed in Allendale County. On the night of September 26-27 he was on duty at the police station in Allendale; and in response to a telephone call shortly after 1:00 o'clock a. m. he proceeded to Fairfax, arriving at the scene of the accident in time to assist in getting the occupants out of the automobile, which had been dragged by the train along the track northwestward of the Highway 321 crossing a distance of one hundred eighty-six feet. When he arrived at the scene of the accident it was quite misty and raining, and very dark. There was no street light burning at the crossing, and the only light in that immediate vicinity was the highway intersection blinker. No. 321 is a through highway and heavily traveled day and night. Examination of the train showed that the automobile had collided with the fifth car to the rear of the engine. It was a boxcar of dull color, and there were no lights on it. The railroad crossing is a bad one because of its proximity to the intersection of the two highways, and because the highway blinker light gives no warning of the railroad track. The witness had many times gotten out of his patrol car and flagged the crossing with his signal light when a train was approaching. The railroad cross-arm sign, which is between the north curb of Highway 28 and the track, and twelve feet east of Highway 321, cannot be seen far by one traveling north on 321 unless he is looking for it, because it is obscured by trees, a filling station, and posts. On cross-examination he testified that his inspection of the automobile led him to conclude that its right front fender had struck the boxcar, and at no great speed, probably between ten and fifteen miles per hour.

We summarize briefly the testimony on behalf of the defendant bearing upon the immediate circumstances of the accident:

Mr. T. F. Spaugh, who on the night in question was a member of the police department of the town of Fairfax, testified that when appellant's train pulled in he was in front of the police station, which was located on the east side of Highway 321 about a hundred feet north of the railroad track. He stood there, as he usually did during shifting operations, so that he could watch for automobiles approaching the crossing from the north. During the entire movement the bell on the engine was ringing. When the train had cleared the crossing a man drove up and told him that a car had run into the train. The witness then went to the scene, found there the train conductor and the Seaboard towerman, and helped to get the people out of the automobile. The nearest street light was at the southeast corner of Highway 28 at its intersection with Highway 321. There was also a large electric light sign on the hotel at...

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