McBride v. Atlantic Coast Line R. Co.

Decision Date28 June 1927
Docket Number12228.
Citation138 S.E. 803,140 S.C. 260
PartiesMcBRIDE v. ATLANTIC COAST LINE R. CO.
CourtSouth Carolina Supreme Court

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

Action by Joseph McBride against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for a new trial.

Cothran J., dissenting in part.

The exceptions on which defendant appealed are as follows:

"(1) The trial court erred in refusing to direct a verdict for the defendant on the ground that the plaintiff was the author of his own injury, since the testimony showed that plaintiff approached and went upon the track of the defendant, conscious of his physical infirmities, without exercising his senses of sight and hearing, when the slightest exercise of same would have disclosed the approaching train.
(2) The trial court erred in failing to direct a verdict for the defendant since there was entire failure of proof of any negligence on its part that could operate as a proximate cause of the injury.
(3) The trial court erred in refusing to direct a verdict for the defendant on the ground that the only reasonable inference to be drawn from the entire testimony was that plaintiff on this occasion was guilty of gross contributory negligence and willfulness, since, conscious of his physical infirmity, he deliberately walked on the tracks of the defendant in front of an approaching train, which he could and should have seen by the exercise of slightest care.
(4) His honor erred in refusing to direct the jury on behalf of the defendant there could be no recovery of punitive damages since there was not sufficient evidence of willfulness or wantonness to warrant submitting said issue to the jury.
(5) The trial court charged the second and third requests of the plaintiff and commented thereon, as follows: (2) "'Where the defendant violates the requirements of the statute as to ringing the bell or sounding the whistle and a person is injured by its locomotive while crossing a highway, street or traveled place it will be presumed that such negligence caused the injury, unless the testimony shows that the injury was caused in some other manner." You see, that is only a presumption; that presumption can be done away with by proof that it wasn't the proximate cause. Though, if it is shown that the bell did not ring or the whistle did not blow, the presumption will be that that caused the injury but that is only a presumption gentlemen, and notwithstanding the fact that the bell or whistle did not sound, it must be shown it was done by some other reason. It is a presumption and can be done away with by proof. I charge you further: (3) "'Where the statutory signals are not given, and an injury occurs, there is a presumption that the failure to give the signals is the proximate cause of the injury." I charged you that, and charge you again; I can repeat; that is only a presumption, and the proof may show that the neglect to do those things was not the cause of the injury.'
This constituted error since the failure to give the statutory signals while negligence per se does not give rise to a presumption that such failure is the proximate cause of the injury.
(6) His honor erred in charging plaintiff's fifth request to charge and commenting thereon as follows: "'I charge you that it is a question for the jury in this case to determine whether or not the locus of the injury was publicly traveled place." I charge you that. You have heard the evidence about this path and so on, and it is for you to say under all the evidence whether that was a traveled place or not'-since there was not sufficient evidence that the point at which plaintiff was injured constituted a crossing or a traveled place within the terms of that statute."

Douglas McKay, of Columbia, and Reynolds & Reynolds, of Sumter, for appellant.

M. A. Wilder, of Aiken, and M. M. Weinberg, of Sumter, for respondent.

STABLER J.

On or about October 22, 1922, the plaintiff, who was in the town of Remini, S. C., while attempting to cross the defendant's track, was hit and severely injured by one of its trains. This action was brought for damages alleged to have been suffered by him, as the result of defendant's alleged negligence and willfulness.

The complaint sets out that the plaintiff was subject to fits of an epileptic nature, and that he fell with one of these fits while crossing the track of the defendant; that although he was in plain view of the agents of the defendant, the defendant drove its train upon and over him while he was in this helpless condition; and that where the plaintiff attempted to cross the defendant's track was a publicly traveled place, known to defendant to be such, and that upon approaching same the defendant negligently and willfully failed to give the required statutory signals.

The defendant denied all the material allegations of the complaint. It also interposed the plea of contributory negligence and willfulness on the part of the plaintiff, in going into a place of danger, with full knowledge of his physical deficiencies, alleging that such acts of the plaintiff were the proximate cause of the injury complained of.

At the close of all the testimony, the defendant's motion for a directed verdict was overruled by the court, and the jury found for the plaintiff in the sum of $1,450.

The defendant appeals to this court by six exceptions, which will be reported. Error is imputed to the trial judge in three particulars: (1) Error in refusing to direct a verdict for the defendant upon the grounds stated in the first four exceptions; (2) error in charging the plaintiff's second and third requests to charge and commenting thereon as complained of by exception 5; and (3) error in charging plaintiff's fifth request to charge and commenting thereon as complained of by exception 6.

We shall consider the defendant's first four exceptions together. These exceptions impute error to the trial judge in refusing to direct a verdict for the defendant on the grounds: (1) That the plaintiff brought about the injuries complained of by his own acts; (2) that there was a failure of proof of any actionable negligence on the part of the defendant; and (3) that the plaintiff was guilty of such gross contributory negligence and willfulness as to bar recovery.

In considering these exceptions it will be necessary to briefly review the testimony.

The plaintiff testified that he lived about three miles from Remini, and that on the day mentoned he went to Remini to sell beef; that the colored cook with the trestle force of the defendant called to him to bring some beef to the cook shanty, "which was situated in a box car on a side track across the main line," opposite the depot; that the public crossing was about 75 yards north of the depot; that he went over to the shanty car by way of a path used by the employees of the defendant or by anybody who had business at the cook shanty, and that the path led to the shanty car and no further; that he was subject to epileptic fits, and that while returning from the shanty car he was taken by one of these fits, and while in this condition, not knowing, hearing or seeing anything, he was hit by the defendant's train upon its track where the path crossed same.

The testimony of the plaintiff and the testimony of the defendant apparently agree that the path which the plaintiff was using at the time of the accident led from the depot to the shanty car on the defendant's right of way and no further, and that it had been used for a number of years by the members of the public having business at the shanty car, particularly for the sale of provisions, etc.

There was testimony on the part of the defendant that the statutory signals were given; that the train was approaching the depot and could be seen at a great distance from that point; and that the plaintiff went on the track in front of the approaching train without taking any precautions for his own safety and was hit while so walking across the track.

While the testimony in the case was meager, it tended to show that the plaintiff approached the track to the left of the approaching train, but was not seen by the operators of the train whose duty it was to keep a lookout, and that the operators thus failed in their duty to exercise the proper care under all the circumstances in keeping a reasonable lookout on the approach to the station. Even if the place where the accident occurred was not a "traveled place," within the meaning of the statute requiring signals to be given at such place, the defendant owed a duty to the plaintiff and the public on its approach to the station, where numbers of people were likely to be assembled, to exercise due care under the circumstances. The jury might have inferred from the testimony that if a proper lookout had been maintained by the defendant in its approach to the station the plaintiff would have been seen, and that if, as contended by the defendant, the train was running at a low rate of speed, it might have been stopped in time to avert the accident; and whether a proper lookout was being maintained by the defendant and whether the failure to keep a proper lookout was the proximate cause of the injury were questions for the jury.

The appellant by its sixth exception imputes error to the trial judge in submitting to the jury the question whether or not the locus of the injury was a "traveled place" within the meaning of the statute, requiring signals to be given at a public crossing or traveled place, stating the error to be that "there was not sufficient evidence that the point at which plaintiff was injured constituted a crossing or a traveled place, within the terms of...

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