Jones v. Southern Ry. Co., No. 17756

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtLEGGE
Citation238 S.C. 27,118 S.E.2d 880
PartiesWayne JONES, Respondent, v. SOUTHERN RAILWAY COMPANY, Appellant.
Docket NumberNo. 17756
Decision Date15 March 1961

Page 880

118 S.E.2d 880
238 S.C. 27
Wayne JONES, Respondent,
v.
SOUTHERN RAILWAY COMPANY, Appellant.
No. 17756.
Supreme Court of South Carolina.
March 15, 1961.

[238 S.C. 28] Frank G. Tompkins, Jr., John Gregg McMaster, Robert J. Thomas, Columbia, William R. Gettys, Camden, for appellant.

[238 S.C. 29] John C. West, Frank E. Rector, Harold W. Funderburk, Camden, John A. Martin, Winnsboro, for respondent.

[238 S.C. 31] LEGGE, Justice.

Shortly after midnight on October 18, 1957, a tractor-trailer being driven by the plaintiff southward on U. S. Highway No. 521, in a dense fog, struck a moving freight train of the defendant at a crossing some three miles south of Camden, S. C. He brought this action for damages for personal injuries sustained in the collision,

Page 881

which he alleged had resulted from negligence and wilfulness on the defendant's part in failing to give proper warning of the presence of the train across the highway. By its answer the defendant denied fault on its part and leaded contributory negligence.

The trial judge overruled defendant's motions for nonsuit and directed verdict, but granted its motion to strike all reference to wilfulness and punitive damages. The jury found for the plaintiff $35,000, actual damages. Thereafter, defendant's motion for judgment no. o. v. was denied, but a new trial was ordered unless the plaintiff should remit $10,000 of the verdict; and this the plaintiff did.

Defendant's appeal primarily charges error in the refusal of its motions for nonsuit and directed verdict, in that: (1) there was no evidence of actionable negligence on its part; and (2) if there was such evidence, nevertheless the only reasonable inference from all of the evidence is that the collision was proximately caused by the plaintiff's contributory negligence.

U. S. Highway 521 runs approximately south from Camden to Sumter. Its asphalt roadway is 25 feet wide, and on either side is a 10 foot dirt shoulder. It is straight for a distance of approximately 1,000 feet northward of the railroad crossing. Defendant's track, running approximately northeast from Columbia to Camden, intersects[238 S.C. 32] the highway diagonally at the crossing in question. On either side of the track, at the crossing, were railroad cross-arm signs, 'reflectorized', on the dirt shoulder of the highway to the right of approaching traffic. Four hundred six feet north of the crossing, to the right of southbound highway traffic, was the usual highway department railroad warning sign.

Defendant's train, en route from Columbia to Camden, consisted of an engine, followed by two loaded coal cars, thirty empty 'wood-racks', and a caboose. A 'wood-rack' is a flat car about 45 feet long with upright solid ends about 7 feet high; it is used for transportation of pulpwood. Testimony for the defendant was to the effect that on the night in question there was a 'spotty' fog over the track; that upon reaching the whistle-post some 1,500 feet southwest of the crossing the statutory signals of bell and whistle were given; that these signals continued until the engine had crossed the highway; and that the speed of the train, which at the whistle-post was 30 miles per hour, was reduced to 25 miles per hour as the crossing was approached, and was accelerated as soon as the engine had passed over the crossing. Plaintiff's tractor-trailer struck the twenty-sixth car and broke its coupling, separating the last seven cars from the rest of the train. The break in the trains' air line caused the brakes to be applied automatically on the engine and all cars, including the seven that had been separated; and the train came to a stop with the caboose about 50 feet beyond the crossing, and a space of about three car-lengths between the two portions of the train.

The plaintiff was the only eyewitness to the collision. We summarize his testimony as follows:

At the time of the trial, in February, 1960, he was thirty-seven years old and had been in the emplo of Foremost Dairies, of Charlotte, N. C., for a little over five years. On the night of the accident he left Charlotte between 9:00 and 9:30 p. m., hauling a 32 foot refrigerated van-type trailer [238 S.C. 33] containing milk for delivery at Sumter and Conway, S. C. His route was via Camden, thence south on Highway 521 to Sumter, thence to Conway. It was his regular route; he had traveled it five nights a week for more than a year; he was familiar with the location of the crossing in question; but he had never seen a train on it. To quote from his direct examination:

'Q. Now on this particular night, what were the conditions concerning the weather? A. It was awful foggy.

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'Q. When you say 'awful foggy', tell us what you mean. Describe it as best you can, as to how much fog was present. A. Well, when I left Charlotte it wasn't as foggy as it was on down this way. The further I came this way the foggier it got, and when I came through Camden, well, it was getting awful foggy. You just mighty near had to follow the white line to see anything.'

He testified that the fog lights on the truck were on, and that his other lights were on dim, as one can see the road better in...

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4 practice notes
  • Osteen v. Greenville County School Dist., No. 24843.
    • United States
    • United States State Supreme Court of South Carolina
    • October 26, 1998
    ...deviation from the course of employment was so trivial that it could be fairly characterized as insubstantial." Cauley, 238 S.C. at 40, 118 S.E.2d at 880; Larson § 27.15, at 5-376. In Cauley, the employee was injured while trimming a piece of board to make a wedge for a fellow employee. We ......
  • Edwards v. Bloom, No. 18389
    • United States
    • United States State Supreme Court of South Carolina
    • August 10, 1965
    ...be operated at a speed greater than that in which it could be stopped within such distance.' In the case of Jones v. Southern Railway Co., 238 S.C. 27, 118 S.E.2d 880, it appears that the plaintiff, driving a tractor-trailer collided with defendant's moving freight train at a crossing. We h......
  • Brown v. Atlantic Coast Line R. Co., No. 17771
    • United States
    • United States State Supreme Court of South Carolina
    • April 28, 1961
    ...his companion.' We do not think the instant case can be distinguished in principle from the recent case of Jones v. Southern Railway Co., 118 S.E.2d 880. There, shortly after midnight, a [238 S.C. 198] tractor-trailer driven by plaintiff struck a moving freight train at a rural crossing. Th......
  • Ledford v. R. G. Foster & Co., No. 18913
    • United States
    • United States State Supreme Court of South Carolina
    • May 2, 1969
    ...It follows that the Trial Judge erred in refusing the motion of the appellant for a directed verdict.' Jones v. Southern Railway Co., 238 S.C. 27, 118 S.E.2d 880, was a case where the plaintiff, an experienced truck driver, driving at night and in thick fog, at a speed of thirty to forty mi......
4 cases
  • Osteen v. Greenville County School Dist., No. 24843.
    • United States
    • United States State Supreme Court of South Carolina
    • October 26, 1998
    ...from the course of employment was so trivial that it could be fairly characterized as insubstantial." Cauley, 238 S.C. at 40, 118 S.E.2d at 880; Larson § 27.15, at 5-376. In Cauley, the employee was injured while trimming a piece of board to make a wedge for a fellow employee. We found......
  • Edwards v. Bloom, No. 18389
    • United States
    • United States State Supreme Court of South Carolina
    • August 10, 1965
    ...be operated at a speed greater than that in which it could be stopped within such distance.' In the case of Jones v. Southern Railway Co., 238 S.C. 27, 118 S.E.2d 880, it appears that the plaintiff, driving a tractor-trailer collided with defendant's moving freight train at a crossing. We h......
  • Brown v. Atlantic Coast Line R. Co., No. 17771
    • United States
    • United States State Supreme Court of South Carolina
    • April 28, 1961
    ...his companion.' We do not think the instant case can be distinguished in principle from the recent case of Jones v. Southern Railway Co., 118 S.E.2d 880. There, shortly after midnight, a [238 S.C. 198] tractor-trailer driven by plaintiff struck a moving freight train at a rural crossing. Th......
  • Ledford v. R. G. Foster & Co., No. 18913
    • United States
    • United States State Supreme Court of South Carolina
    • May 2, 1969
    ...It follows that the Trial Judge erred in refusing the motion of the appellant for a directed verdict.' Jones v. Southern Railway Co., 238 S.C. 27, 118 S.E.2d 880, was a case where the plaintiff, an experienced truck driver, driving at night and in thick fog, at a speed of thirty to forty mi......

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