Key v. Charleston & W. C. Ry. Co

• Decision Date: 31 March 1928
• Docket Number: (No. 12405.)
• Court: South Carolina Supreme Court
• Parties: KEY. v. CHARLESTON & W. C. RY. CO.

142 S.E. 336

KEY.

v.CHARLESTON & W. C. RY. CO.

(No. 12405.)

Supreme Court of South Carolina.

March 31, 1928.

Cothran, J., dissenting.

Appeal from Common Pleas Circuit Court of Aiken County; John S. Wilson, Judge.

Action by Mrs. Delia Key, as administratrix of the estate of Eugene Boyd, deceased, against the Charleston & Western Carolina Railway Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded for new trial.

Williams, Croft & Busbee, of Aiken, for appellant.

Gunter & Wilder, of Aiken, and F. B. Grier and M. G. McDonald, both of Greenwood, for respondent.

BLEASE, J. This action was brought in the court of common pleas for Aiken county to recover actual and punitive damages for the alleged negligent and reckless killing of Eugene Boyd by the defendant. The trial was before Hon. John S. Wilson, circuit judge, and a jury. There was a directed verdict for the defendant as to punitive damages. The jury found in favor of the defendant as to actual damages. The plaintiff has appealed to this court. The defendant asks that the verdict and the judgment below be sustained on the ground that the presiding judge should have also directed a verdict for the defendant as to actual damages.

In disposing of the question as to the alleged error in refusing to submit the issue of willfulness, we may, at the same time, consider the defendant's appeal.

To measure the evidence properly, we must first see what acts of negligence and willfulness were charged against the defendant. These were stated in the complaint to be: The failure to give proper signals or warning of the train's approach; the rapid and dangerous rate of speed at which the train was running; failure to keep a reasonable lookout; failure to have train under proper control, so as to be able to stop the same; and failure to have proper headlight on the locomotive, the one in use not casting light far enough ahead to enable the proper seeing of a person on the track.

Bearing upon the acts of negligence set out, and connected therewith, were allegations in the complaint that the place of the accident had been used by the public as a footpath, walkway, and traveled place, openly and notoriously, for more than 20 years, and that the intestate was in a helpless condition on the railroad's right of way at the time the accident occurred.

The defendant, after setting up a general denial, alleged that the deceased was a trespasser, and that his death was occasioned by his contributory negligence and willfulness, in that he placed himself in a position of danger on defendant's right of way, while in an intoxicated condition, and failed to use due care, or even slight care, for his own safety.

It is necessary, because of opposing views, to review the testimony, to some extent, for the purpose of seeing if there was any evidence to sustain the allegations of the complaint.

There was some testimony, and so much seems to be admitted in the opinion of Mr. Justice COTHRAN, showing that the deceased was a licensee, and that his dead body, badly mangled, was found in the footpath, near the ends of the cross-ties, in a place that the public had used uninterruptedly and continuously for at least 20 years; that deceased was struck and killed by some part of a train while sitting on the end of a cross-tie, or standing upon or quite near to the railroad track; that the railroad track was perfectly straight for a great distance; that persons upon an engine, approaching the place where the deceased was killed, by the use of ordinary care, could have seen for a considerable distance an object on the track as large as a man; and that, shortly after the deceased had left Ellenton for his home at Bush Station, walking along the railroad track in an intoxicated condition, a train of the defendant passed through Ellenton, traveling also in the direction of Bush.

The record discloses some testimony that no signals were given for at least three crossings between Ellenton and the place where the body of the deceased was found. It is true, as stated by Mr. Justice COTHRAN, that nearly all of the plaintiff's witnesses, in their testimony, limited the signal referred to by them as the one of sounding the whistle. But one witness, Angus Williams, testified positively:

"I didn't hear it blow at all as it was going out of Ellenton in the direction of Mr. Boyd. I did not hear any signals at all after it left Ellenton."

If the witness had in mind, as he may have had, both the blowing of the whistle and the ringing of the bell, warning signals usually given by a locomotive engine, when he used "any signals, " then he meant to say, and did say, that the bell was not rung. This view seems strengthened by the fact that, before using the language referred to, the witness had first testified that he did not hear the whistle Mow. In any event, if there was doubt as to the meaning of the language of the witness, and more than one inference could have been drawn from his statement, and if either of such inferences were favorable to the plaintiff, the jury was the proper authority to pass upon what that inference was. And, even if it should be conceded that a bell of some kind did ring, it was for the jury to determine if the defendant, under all thecircumstances, should have also sounded the whistle, since a whistle is generally more likely to give warning than a bell.

One witness testified that the train was making about 25 miles per hour; another stated it was running "pretty lively"; and the engineer and fireman testified that the speed was from 20 to 25 miles per hour. The engineer swore that he could stop his train at the rate he was running within 225 feet. Whatever the speed, 25 miles per hour, more or less, it was for the jury to say if it was excessive, and if the train was under proper control at the time, under the circumstances; 50 miles an hour may not be an excessive rate of speed at a given time, under certain circumstances, while 10 miles an hour might be excessive at another time, under other circumstances. So the questions of negligence as to the rate of speed and as to having the train under control were for the jury.

The engineer swore that the engine was equipped with a standard electric headlight, and was burning brightly, and that, going through the cut where the accident happened, he could distinguish a man standing up for 450 feet. Witnesses for the plaintiff, even if their testimony may be "unsatisfactory" to many people, swore that the headlight was dim; and one of plaintiff's witnesses testified that he had ascertained by experience that with the use of a proper headlight he "could see a man anywhere in that cut, which was a distance of one-third of a mile (1, 760 feet)." If the headlight was not bright, but was only dim, it was for the jury to say if the dim light was sufficient, or if it was negligence to carry a light of that kind.

We find in the record all of the testimony referred to by Mr. justice COTHRAN to show that the deceased was under the influence of whisky a short while prior to his death. But there was evidence that he was not helplessly drunk at that time, and that he could walk, and was walking along or on the railroad track just before the train came along. But, even if the deceased was down on the track, helplessly drunk, and if those in charge of the operation of the train saw him in that condition, and appreciated his plight, or they could have seen him and appreciated his condition, by the exercise of reasonable diligence, and had the ability to stop the train without injuring the deceased, it was their duty, under the law, to so do. These questions, on the matter of contributory negligence, were all for the jury.

The very positive testimony of the engineer and fireman that they did not see the deceased on the track was testimony for the jury to consider. They had the right to accept it in the face of any contrary evidence, direct or circumstantial. But the testimony of these witnesses should not have been accepted by the court as conclusive of the issues involved as a matter of law. In his concurring opinion in Wilson v. Southern Ry. Co., 93 S. C. 17, 75 S. E. 1014, Mr. Justice Woods said:

"But contributory negligence is not a defense against willfulness or wantonness. The duty of a locomotive engineer and a fireman to keep a vigilant lookout ahead, for the sake of passengers as well as those who may be helpless on the track, is urgent, and the failure to keep a lookout may be evidence of recklessness or wantonness. In this case, the night of the fatality was bright and the locomotive had a powerful electric headlight. There was evidence from which it might be inferred that Wilson was lying on the track asleep or drunk or that he was crossing the track on his way home and that the place was one where persons were to be expected crossing the track. The evidence also tended to show that those in charge of the engine did not see Wilson at all, for the train did not slow up or stop. From all this the jury might infer that no lookout was kept and that this was a reckless disregard of the lives of those who might be on the track even as trespassers. Sentell v. So. Ry., 70 S. C. 183 . The evidence warrants, also, a rejection of such an inference, but whether the inference should be accepted or rejected was a question for the jury." (Italics added.)

Two cases are rarely exactly alike. There was much similarity, however, in the facts from the plaintiff's viewpoint in the case at bar and the facts favorable to the plaintiff in the case of Woodward v. Southern Ry., 90 S. C. 262, 73 S. E. 79. The main difference, as pointed out by Mr. Justice COTHRAN, in the facts of the Woodward Case and this case was that in the former there was some testimony that there was no headlight on the engine; while here the testimony most favorable to the plaintiff was that the headlight was dim and insufficient. A dim light, of course, may be much better than no light...