Miller v. Atl. Coast Line R. Co, (No. 12063.)

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtWATTS
Citation138 S.E. 675
PartiesMILLER. v. ATLANTIC COAST LINE R. CO. et al.
Decision Date10 September 1926
Docket Number(No. 12063.)

138 S.E. 675

MILLER.
v.
ATLANTIC COAST LINE R. CO. et al.

(No. 12063.)

Supreme Court of South Carolina.

Sept. 10, 1926.


[138 S.E. 675]

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Negligence Per Se.]

[138 S.E. 676]
On Petition for Rehearing.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Unnecessary; Unreasonable Time.]

[138 S.E. 677]

Cothran, J., dissenting.

Appeal from Common Pleas Circuit Court, Richland County; W. H. Townsend, Judge.

Action by S. Liles Miller, administrator of the estate of D. B. Miller, deceased, against the Atlantic Coast Line Railroad Company, the Camp Manufacturing Company, and others. Judgment for plaintiff against defendants named and said defendants appeal. Affirmed.

The Atlantic Coast Line Railroad Company's motion for new trial was made on the following grounds:

A. The verdict in this case is grossly excessive and could have been based only upon passion and prejudice.

B. The verdict of the jury in favor of Engineer Johnston of the Atlantic Coast Line Railroad Company and Engineer Pulley of the Camp Manufacturing Company, having established that these agents and servants were guiltless of charges of negligence, and the corporate defendants having been held solely through the alleged negligence of these employees, the finding of the jury against these defendants should be set aside and a new trial ordered.

C. Under the allegations of the complaint and the charge of the court, the jury might have found a verdict against the Atlantic Coast line Railroad Company, Camp Manufacturing Company, and Arthur Pulley for the alleged negligent obstruction of the crossing on tha ground as alleged that the Atlantic Coast Line Railroad Company acquiesced in and permitted those defendants to obstruct the crossing, the finding in favor of Pulley discharges from liability his principal, Camp Manufacturing Company, and the Atlantic Coast Line Railroad Company, which latter cannot be held liable for the mere acquiescence and approval of the act for which its codefendants are discharged from responsibility.

The defendant Camp Manufacturing Company moves for judgment and to set aside the verdict herein upon the following grounds:

(1) Because the verdict exonerated Arthur Pulley from liability, and, if there was any delict of this defendant, the same was committed solely through the agency of its engineer, the said Arthur Pulley.

(2) Because the evidence shows that, if the defendant Arthur Pulley did not commit the tort alleged against this defendant and the said Arthur Pulley, then there was no such tort committed, and a verdict against this defendant alone cannot stand.

(3) Because the verdict was contrary to the charge of the presiding judge, in that it clearly appeared from the charge that the liability of this defendant was dependent upon the liability of Arthur Pulley. Judgment should be entered in favor of this defendant on the fore going grounds; but, failing in this, we ask for a new trial on same grounds and the following:

(4) Because the overwhelming weight of the evidence shows that the alleged delict of this defendant was not a proximate cause of the death of plaintiff's intestate.

(5) Because the amount of the verdict against this defendant is grossly excessive.

The order overruling appellants' motions for new trial reads as follows:

Motions for judgment in favor of each of the corporation defendants, and failing in that for a new trial, on the written grounds hereto attached and filed herewith, have been heard before me. I have examined the transcript of the stenographer's notes on the trial which have been furnished me.

There was evidence tending to show that the death of the plaintiff's intestate was proximately caused by negligence on the part of the railroad company, through its station agent, Clintworth, in unnecessarily and negligently obstructing and permitting the obstruction by its licensee of a highway crossing in the town of St. Stephens, for 10 or 15 minutes, without using any safeguards to warn travelers on the highway of such obstruction, and by the negligence of the Manufacturing Company, whose train of flat cars obstructed the crossing, in omitting any safeguards for the protection of travelers, while the track was so obstructed. Bowen, the colored fireman, employed by the manufacturing company to flag its train, when necessary, did not perform such duty on the occasion in question, and no precautions for the safeguard of the public were taken by the manufacturing company. The night was dark and rainy; one witness testified she did not discover the presence of the flat cars upon the track until within six feet of them. The track on which they stood was about three feet higher than the street, and the driver of the automobile in which the deceased was riding testified that they did not know the crossing was blocked until they got up the incline and on the main track, when, as the witness Harris testifies, the light of the automobile came down and shone against the obstructing cars—too late for the driver to avoid the collision with the train then approaching on the main track. The defendant Johnson, engineer in charge of the approaching train, testified, if there had been nothing to stop the automobile on the crossing—that is, no obstruction—it would have gotten clear across before, and avoided, the collision. Hence the failure to give notice of the presence of the flat cars obstructing the track was the proximate cause of the death of plaintiff's intestate.

For these reasons, I think there is sufficient evidence in the case to sustain the verdict against corporation defendants.

As to the size of the verdict, the deceased was a young man of high character with excellent prospects for the future. The plaintiff, his father, has other children to care for, and in view of the fact that the jury is to give such damages as they find proportionate to the injury I do not think the verdict excessive.

The motions for judgment in favor of defendants and for a new trial are refused; and it is so ordered. It is ordered that the plaintiff

[138 S.E. 678]

have leave to forthwith enter up judgment up-. on the verdicts in his favor. It is further ordered that, inasmuch as the judgment against the railroad company will have a statutory lien to secure it, in the event of an appeal from said judgment, such appeal shall act as a supersedeas and stay the issuance of execution against the railroad company during the pendency of the appeal.

An appeal by the Manufacturing Company shall not operate as a supersedeas, unless that company shall give the usual appeal bond in the sum of $29,000 for the payment of the judgment, interest, and costs against it, in the event that the judgment appealed from should be affirmed.

The exceptions of the Atlantic Coast Line Railroad Company here follow:

(1) The court erred in refusing to enter judgment for the Atlantic Coast Line Railroad Company, since the verdict of the jury exonerating Pulley, the engineer in sole charge of the Camp Company train, necessarily exonerated his principal and the Atlantic Coast Line Railroad Company, which was charged with negligence and willfulness in permitting and acquiescing in Pulley's act of obstructing the crossing.

(2) The court erred in refusing to set aside the verdict rendered, since the exoneration of Pulley, the engineer of the Camp Company train, which was obstructing the crossing, rendered inconsistent a finding against the corporate defendants; the Camp Company being responsible solely by reason of his acts and the Railroad Company being responsible solely for permitting and acquiescing therein.

(3) The court erred in overruling the motion for new trial in holding that the death of plaintiff's intestate "was proximately caused by negligence on the part of the Railroad Company through its station agent, Clintworth, in unnecessarily and negligently obstructing and permitting the obstruction by its licensee of a highway crossing in the town of St. Stephens for 10 or 15 minutes without using any safeguards to warn travelers on the highway of such obstruction, " there being no basis for holding it liable on such ground either in the pleadings or the evidence.

(4) The court erred in refusing to direct a verdict for the Atlantic Coast Line Railroad Company on the ground that there was not sufficient evidence to go to the jury as to the negligence or willfulness on the part of the Railroad Company which could operate as the proximate cause of the injury.

General Exceptions.

(1) Because the court erred, it is respectfully submitted, in refusing to grant these defendants' motion to direct a verdict on the ground that the evidence conclusively shows, and no other reasonable inference can be drawn therefrom; that, even if there was any negligence or willfulness on the part of these defendants, the sole proximate cause of the death of plaintiff's intestate was the gross negligence of the driver of the automobile in entering upon the railroad track and attempting to cross the same without looking and listening effec tively, because by the reasonable use of his senses he would have seen and heard the train fast approaching.

(2) Because the court erred, it is respectfully submitted, in refusing these defendants' motion for a directed verdict upon the ground that the evidence conclusively shows, and no other reasonable inference can be drawn therefrom, that the driver of the automobile was guilty of gross contributory negligence in entering upon the railroad track without effectively using his senses of sight and hearing, because, if he had done so, he would have seen and heard the train fast approaching, and there was nothing in the circumstances surrounding same which would have prevented such exercise of his senses.

(3) His honor erred in refusing to direct a verdict on behalf of the defendants, since the only reasonable inference to be drawn from...

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43 practice notes
  • Jacobs v. Atl. Coast Line R. Co, (No. 12505.)
    • United States
    • United States State Supreme Court of South Carolina
    • October 2, 1928
    ...the jury, and his honor was in error in directing a verdict for the defendant under the cases of Miller v. A. C. L. Ry., 140 S. C. 170, 138 S. E. 675; Key v. C. & W. C. Ry., 144 S. C. 172, 142 S. E. 336; Callison v. Charleston & W. C. Ry., 106 S. C. 129, 90 S. E. 260; State v. DesChamps, 12......
  • Green v. Atlanta &. C. A. L. Ry. Co, (No. 12481.)
    • United States
    • United States State Supreme Court of South Carolina
    • July 7, 1928
    ...The Carter Case is reaffirmed in Sandel v. State, 115 S. C. 168, 104 S. E. 567, 13 A. L. R. 1268; Miller v. R. Co., 140 S. C. 123, 138 S. E. 675. As is stated in 1 Shear. & R. Neg. (5th Ed.) § 25: "The defendant's negligence may put a temptation in the way of another person to commit a wron......
  • Key v. Carolina & N. W. Ry. Co, No. 13112.
    • United States
    • United States State Supreme Court of South Carolina
    • April 9, 1931
    ...were bound to find for the plaintiff." The last case was expressly reaffirmed in the very recent one of Miller v. R. Co., 140 S. C. 123, 138 S. E. 675. The ruling of the trial judge (not the statute) precludes in this state the application of the standard of conduct governing railroad and t......
  • Ford v. Atl. Coast Line R. Co, No. 13405.
    • United States
    • South Carolina Supreme Court
    • May 11, 1932
    ...instructions. Osteen v. Southern Railway Company, 70 S. C. 368, 378, 57 S. E. 196; Miller v. A. C. L. Railroad Company, 140 S. C. 123, 138 S. E. 675. It is equally well settled here as elsewhere that in the consideration of a motion for a nonsuit, directed verdict, or new trial by the defen......
  • Request a trial to view additional results
43 cases
  • Jacobs v. Atl. Coast Line R. Co, (No. 12505.)
    • United States
    • United States State Supreme Court of South Carolina
    • October 2, 1928
    ...the jury, and his honor was in error in directing a verdict for the defendant under the cases of Miller v. A. C. L. Ry., 140 S. C. 170, 138 S. E. 675; Key v. C. & W. C. Ry., 144 S. C. 172, 142 S. E. 336; Callison v. Charleston & W. C. Ry., 106 S. C. 129, 90 S. E. 260; State v. DesChamps, 12......
  • Green v. Atlanta &. C. A. L. Ry. Co, (No. 12481.)
    • United States
    • United States State Supreme Court of South Carolina
    • July 7, 1928
    ...The Carter Case is reaffirmed in Sandel v. State, 115 S. C. 168, 104 S. E. 567, 13 A. L. R. 1268; Miller v. R. Co., 140 S. C. 123, 138 S. E. 675. As is stated in 1 Shear. & R. Neg. (5th Ed.) § 25: "The defendant's negligence may put a temptation in the way of another person to commit a wron......
  • Key v. Carolina & N. W. Ry. Co, No. 13112.
    • United States
    • United States State Supreme Court of South Carolina
    • April 9, 1931
    ...were bound to find for the plaintiff." The last case was expressly reaffirmed in the very recent one of Miller v. R. Co., 140 S. C. 123, 138 S. E. 675. The ruling of the trial judge (not the statute) precludes in this state the application of the standard of conduct governing railroad and t......
  • Ford v. Atl. Coast Line R. Co, No. 13405.
    • United States
    • South Carolina Supreme Court
    • May 11, 1932
    ...instructions. Osteen v. Southern Railway Company, 70 S. C. 368, 378, 57 S. E. 196; Miller v. A. C. L. Railroad Company, 140 S. C. 123, 138 S. E. 675. It is equally well settled here as elsewhere that in the consideration of a motion for a nonsuit, directed verdict, or new trial by the defen......
  • Request a trial to view additional results

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