McAbee v. Southern Ry. Co.

• Decision Date: 07 June 1932
• Docket Number: 13423.
• Citation: 164 S.E. 444,166 S.C. 166
• Parties: McABEE v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

164 S.E. 444

166 S.C. 166

McABEE v. SOUTHERN RY. CO.

No. 13423.

Supreme Court of South Carolina

June 7, 1932

Appeal from Common Pleas Circuit Court of Chester County; P. H Arrowsmith, Special Judge.

Action by T. W. McAbee against the Southern Railway Company. Judgment for plaintiff, and defendant appeals.

Judgment reversed, and cause remanded for new trial.

McDonald MacAulay & McDonald, of Chester, and Frank G. Tompkins, of Columbia, for appellant.

James H. Glenn and Gaston, Hamilton & Gaston, all of Chester, for respondent.

BLEASE C.J.

This action, instituted and tried in the court of common pleas for Chester county, for personal injuries to the respondent, grew out of a collision at a public street crossing in the city of Union between an automobile operated by the respondent and a train of the appellant, railway company. The verdict and the judgment were against the railway company for the sum of $1,200.

In the main appeal, there are six exceptions, but, under the view we take of the case, it is only necessary to pass upon one of them--the second.

The engineer, in charge of the engine involved in the collision testified that the bell of the locomotive was rung in compliance with the statute. Section 4903, 1922 Civ. Code section 8355, 1932 Code. He admitted that the whistle was not sounded, and offered as an excuse for the failure so to do the fact that an ordinance of the city of Union prohibited the blowing of a locomotive whistle within the limits of that municipality. The respondent testified that he did not hear the ringing of the bell. He indicated in his testimony that he could have heard the sounding of the locomotive whistle. The attorneys for the respondent argued that, if the whistle had been sounded, this loud, penetrating, and startling noise would have attracted the attention of the respondent, as he was about to cross the railroad track, and thereby the accident would have been prevented.

The instructions of the trial judge to the jury, touching the ordinance of the city of Union, complained of by the appellant, and made the basis of the second exception, were as follows: "I charge you, gentlemen of the jury, that if you should find from any evidence that you have heard in this case that the city of Union has an ordinance that prohibits the blowing of a locomotive whistle in the city of Union that such an ordinance would be beyond the power of a municipality to pass, because it would be contrary to the laws of the State of South Carolina, which require under certain circumstances the blowing of the whistle. The government of a municipality is created by the laws of the State of South Carolina, and the creature cannot be greater than its creator, and the laws of a municipality to be good must not be inconsistent with the laws of the State."

It is provided in the "signaling statute" (section 8355, 1932 Code, section 4903, 1922 Civ. Code) that "such bell shall be rung or such whistle sounded by the engineer or fireman or motorman *** and be kept ringing or whistling. ***" The statute does not require both the ringing of the bell and the blowing of the whistle. The ringing of the bell or sounding of the whistle, so far as the statute is concerned, is a sufficient signal of the moving or approach of the train. Timmons v . Southern Railway Co., 138 S.C. 82, 136 S.E. 27; Bowen v. Southern R. Co., 58 S.C. 222, 36 S.E. 590; Sanders v. Charleston & W. C. R. Co., 93 S.C. 543, 77 E. 289.

It appears to be conceded by both parties to this suit, and in our opinion properly so, that the city of Union, in and by its properly constituted authorities, had the right and power, under the provisions of section 7233 of the Code of 1932 (section 4388, Civ. Code of 1922), relating to the power of municipal corporations "to enact rules or ordinances for police government," to pass the ordinance forbidding the blowing of a locomotive whistle within the corporate limits of the municipality, if that ordinance did not conflict with the proviso in that section of the Code to the effect that an ordinance of a municipality "shall not be inconsistent with the laws of this State."

The question here is this: Does the ordinance so conflict with the provisions of the statute as to make it void, for the reason that the Legislature has said the signal shall be the ringing of the bell or the sounding of the whistle, and the ordinance has declared that the whistle shall not be sounded?

The recognized principles as to "what constitutes conflict" between municipal regulations and the law of the state seems to us to be well expressed in certain language in 43 C.J. 218-220, from which we quote the following excerpts:

"The question as to whether or not a municipal ordinance or regulation is in conflict with the general law is sometimes difficult of solution, and cannot be determined by any fixed rule. Each particular case must be determined as it arises. Broadly speaking, the question whether a conflict exists depends upon whether the state has occupied the whole field of prohibitory legislation with respect to the subject. If such is the case it is held that a conflict exists. In order that there be a conflict between a state enactment and a municipal regulation both must contain either express or implied conditions which are inconsistent and irreconcilable with each other. Mere differences in detail do not render them conflicting. If either is silent where the other speaks, there can be no conflict between them. Where no conflict exists, both laws stand. The rule that a municipal ordinance in conflict with a state law upon the same subject is void does not apply unless the state law with which the particular ordinance conflicts is intended to apply, and is, in fact, applicable and imperative in the particular municipal corporation in which such ordinance has been enacted.

"As a general rule, additional regulation to that of the State law does not constitute a conflict therewith. *** Merely because a municipal ordinance is not as broad as the statute does not render it so inconsistent as to make it void." (Italics added.)

The declared principles...