Leitner v. Columbia Ry., Gas & Elec. Co.

• Decision Date: 15 May 1928
• Docket Number: 12448.
• Parties: LEITNER v. COLUMBIA RY., GAS & ELECTRIC CO. et al.
• Court: South Carolina Supreme Court

143 S.E. 273

145 S.C. 489

LEITNER v. COLUMBIA RY., GAS & ELECTRIC CO. et al.

No. 12448.

Supreme Court of South Carolina

May 15, 1928

Appeal from Common Pleas Circuit Court of Richland County; E. C Dennis, Judge.

Action by C. H. Leitner against the Columbia Railway, Gas & Electric Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Cothran J., dissenting.

Elliott & McLain and R. B. Herbert, all of Columbia, for appellants.

Frank G. Tompkins, of Columbia, Salley & Salley and Adam H. Moss of Orangeburg, for respondent.

STABLER J.

I regret that I find myself in disagreement with the opinion of Mr. Justice COTHRAN that the judgment in this case should be reversed; to the contrary, for the reasons which follow, I think the judgment should be affirmed.

This is an action for damages for personal injuries alleged to have been received by the plaintiff on December 20, 1924. On the afternoon of that date, the automobile in which the plaintiff was riding on his way to the city of Columbia broke down near a point known as the Seaboard crossing on the road leading from Hyatt Park into the city. He secured help, and was engaged several hours in repairing the automobile, which was parked close to the street car track. After the work was finished, finding it necessary to get a bucket of water for the radiator of the car, he started to a nearby branch or spring, and in crossing, or attempting to cross, the street railway track, was struck by a street car, and seriously injured. He alleged that the injuries thus received resulted from the negligent and willful acts of the defendant street railway company, in the following particulars:

"(a) In failing to ring any gong or to give any warning whatsoever to the plaintiff that a street car was approaching, in time for him to avoid it.

(b) In running the said street car at such a high, reckless and unlawful rate of speed as to endanger the life, limb, and property of the plaintiff and users of the said public road at the point in question.

(c) In failing to keep a proper lookout, when by so doing plaintiff could have been seen, and the street car could have been stopped, and signals given, in time to have avoided the accident.

(d) In violating its own rules and failing to bring the street car down to a slow rate of speed and to stop at the point in question, in accordance with signs maintained thereat.

(e) In that, knowing that the said track was on a down grade at the place in question, and that the street car line was very close to the road in question and crossing the traveled way in question, the defendant Columbia Railway, Gas & Electric Company failed to take extra precautions by running the street car slowly, keeping an extra lookout to prevent the possibility of injuring the plaintiff or others at the point in question.

(f) In that, knowing that the plaintiff and others were working on the car in question, closely adjacent to the track here in question, the defendant Columbia Railway, Gas & Electric Company, its agents and servants, failed and refused to bring the street car under control and to keep an extra lookout in order to prevent an accident at that point"

The answer set up contributory negligence, and pleaded that the plaintiff was a trespasser upon the street car tracks at the time of the injury. During the trial of the case, the plaintiff withdrew his claim for punitive damages, and the court instructed the jury that, if they found for the plaintiff, they should find actual damages only. The defendants' motion for a directed verdict, based upon several grounds, was overruled by the court. The jury found for the plaintiff in the sum of $20,000. From judgment entered on the verdict, the defendants appeal.

Of appellants' assignments of error, Mr. Justice COTHRAN considers only two: (1) The refusal of the defendants' motion for a directed verdict on the ground that the plaintiff's contributory negligence was the proximate cause of his injuries; and (2) error in admitting, over objection, defendants' rule 280 applicable to the operation of street cars.

As to the first proposition, which is discussed as "a major reliance of the defendants for reversal," the learned justice asserts:

"No other reasonable inference can be drawn from the evidence than that the plaintiff was guilty of such contributory negligence as to bar his recovery of damages."

And in support of this assertion, he directs attention, in the following language, to certain testimony of several of plaintiff's witnesses:

"Harry Anderson, the plaintiff's first witness, testified that he was standing on the front platform, by the side of the motorman; that there was absolutely nothing to keep the plaintiff from seeing the street car at least 300 or 400 feet before it got to him.

Mrs. Johnson testified that she was sitting near the front of the car looking out of the front window; that it looked to her as if just as the plaintiff stepped on the track the car hit him.

C. H. Leitner, Jr., testified that the plaintiff started to cross the track diagonally, facing slightly up the hill, in the direction from which the car was coming; that all that the plaintiff would have had to do to see the car coming was to glance up; that the track was straight for more than a block; that he saw the car coming, and tried to pull his father back.

Dr. Williams testified that he was driving a block away, going into Columbia, looking in the same direction that the plaintiff should have looked, and could plainly see the car after it had stopped."

It is not a correct test of a fact sought to be proved, to consider only certain portions of the testimony pertinent to such fact or issue and to disregard other portions equally as pertinent, but in effect contradictory. An examination of the record in this case discloses that there was a mass of conflicting testimony on the question of contributory negligence as well as on other material questions.

For instance, turning to the testimony of the witnesses named in the opinion of Mr. Justice COTHRAN, we find that the witness Anderson, on cross-examination, did testify that there was nothing to keep the plaintiff from seeing the street car, and that he could have seen it 300 or 400 feet before it reached him. There was, however, testimony of other witnesses tending to show that it was growing dark, that there were no lights on the street car, and that the view of the approaching car from the point where the plaintiff was injured was "camouflaged" by the contour of the land, trees, buildings, and billboards and the color of the street car, all of which might interfere with or prevent the plaintiff's seeing the car upon its approach. Anderson did not testify that he stood where the plaintiff was injured and looked in the direction from which the street car approached to test the truth or accuracy of his statement that the plaintiff could have seen the car. His testimony showed that he was standing on the front platform with the motorman, looking in the direction of the place where the plaintiff was injured. Hence, when all the testimony in the case is properly considered, his statement is seen to be nothing more than an expression of opinion, and whether such opinion was of any factual value was a question for the jury. In addition, he testified that the car was some 40 or 50 feet away when the plaintiff picked up the bucket and started across the track; that witness's hearing was good, and, if the gong was sounded he did not hear it.

Mrs. Johnson testified that at the time of the accident she was "middle ways of the car on the right-hand side"; that the car was going down hill at a very fast rate of speed; that "all of us ladies talked about how fast it was going-we all hold our breath going down that hill"; and that she did not hear any gong or bell ring. It does not appear from her testimony that she knew anything about the plaintiff's position or how the accident occurred, except that for a moment she saw his face, and it looked to her as if the man had stepped out on the track. She was certain, however, as to the street car's rapid rate of speed.

It is true that C. H. Leitner, Jr., testified, on cross-examination, that all the plaintiff had to do was to glance up, and he could have seen the street car coming, but immediately afterwards, apparently on a better understanding of the question, he changed or materially modified his statement. I quote in full his testimony on that point:

"Q. Then he (the plaintiff) was a little more facing the direction of the street car than if he had gone straight across? A. His body was, but his face was not-well in that position, he was turned that way (indicating)-all he would have had to do would be to glance up, and he could have seen the street car coming? A. Yes, sir.

Q. Practically straight for more than a block up there-that's correct, isn't it? A. It is straight for some distance. I don't know how far.

Q. If he had looked, he could have seen the street car coming? A. He would have had to look, sir.

Q. He would have had to raise his head and look, and he could have seen the street car coming? A. You mean if he could have just glanced that way-he could have seen it?

Q. Yes, sir. A. No, sir.

Q. What was there to obstruct his view? A. It was camouflaged.

Q. You mean the street car-camouflaged like the battle ships were? A. No, sir; I don't mean that, but the billboards were painted up, and the street car was painted up, and it was just before dark and no lights, and the whole thing was camouflaged."

This witness also testified that he first saw the street car when it was about four to six feet away, and after the mechanic "hollered"; and that, just beyond where the accident occurred, there was a "stop" sign,...