Mishoe v. Atlantic Coast Line R. Co.

Decision Date16 March 1938
Docket Number14644.
CourtSouth Carolina Supreme Court

Order on Petition for Rehearing.

Appeal from Common Pleas Circuit Court of Williamsburg County; C.J Ramage, Judge.

Action by L. G. Mishoe, as administrator of the estate of Thomas Hugh Pollard, against the Atlantic Coast Line Railroad Company and others for the death of the plaintiff's intestate, resulting from a collision between a truck and a railroad train. From an adverse judgment, the defendants appeal .


BONHAM and BAKER, JJ., dissenting.

F. L Willcox, of Florence, for appellants.

A. C Hinds, of Kingstree, and J. D. E. Meyer, of Charleston, for respondent.

A. C Hinds, of Kingstree, and J. D. E. Meyer, of Charleston, for respondent.

Appeal from judgment entered for plaintiff in an action for wrongful death, instituted for the benefit of the widow and son of his intestate, Thomas Hugh Pollard.

Deceased met his death at Heineman, this state, while traveling north from Charleston at night upon U.S. Highway No. 17 in a truck owned by him and loaded with vegetables, but operated by one of his employees, as the latter attempted to cross, at grade the tracks of appellant, Atlantic Coast Line Railroad Company, at a point where the highway and railroad intersect at right angles-when his truck and a passenger train were in collision. The train was derailed, the truck was demolished, and the deceased was instantly killed.

The amended complaint alleges, in substance, that the death of Pollard was caused by the joint and concurrent negligence, carelessness, recklessness, willfulness, and wantonness of defendants, their agents and employees, in permitting said locomotive and train to approach and go upon said crossing at a rapid, excessive, and dangerous rate of speed, although the engineer was fully acquainted with all of the existing hazardous conditions at such crossing, created by the acts, defaults, and omissions of defendants; in permitting the train involved to approach and go upon said crossing at such speed, and without reducing the same, or giving the statutory signals, or any other signal or warning that it was approaching; in unnecessarily, and for an unreasonable time, keeping and maintaining a string of box cars on a spur track in close proximity to the highway, which, combining with structures and trees on the south of the railroad, and west of the highway, obstructed the view of, and prevented the operators of northbound motor vehicles from seeing or observing, the approach of eastbound trains.

Defendants denied all allegations of negligence, recklessness, willfulness, and wantonness, and affirmatively alleged that respondent's intestate, by the exercise of reasonable care, or by the exercise of slightest care, could have seen and heard the approaching train, yet he negligently, and with gross carelessness, gross recklessness, and gross willfulness, failed and neglected to take the slightest care for his protection, and permitted the truck to be driven into the front of an approaching train, which could have been seen and heard in ample time to have brought the truck to a stop by the exercise of the slightest care. The pleas of contributory negligence, contributory gross negligence, willfulness, and recklessness of the intestate, and of the driver of the truck, were also affirmatively interposed as being in bar of the action.

At the close of the case, a motion for directed verdict for the defendant, Bruner, roadmaster, having been granted for lack of evidence implicating him in any manner with the unfortunate death of Pollard, counsel for the railroad company and Cabell, engineer of the ill-fated train, moved for a directed verdict in their favor upon the ground that "the only reasonable inference, the only inference, that could possibly be drawn by a reasonable man from all of the testimony, is that the plaintiff's intestate was as negligent, such negligence contributing as a proximate cause to his injury; was as wanton, if that is possible, such wantonness contributing as a proximate cause of his injury, and was as grossly negligent, such gross negligence contributing as a proximate cause of his injury, as either of the defendants; and that there is no reasonable inference that can be drawn from all of the testimony but that plaintiff's intestate, and the party in whose charge he had placed his automobile and himself, were grossly negligent, and that such gross negligence contributed to the injury as a proximate cause thereof."

This motion being refused, the trial judge submitted the cause to the jury as to actual damages only, whereupon a verdict in the sum of $40,000 was returned against appellants.

Upon motion for new trial upon grounds not fully disclosed by the record before this court, the court below "reached the conclusion that all the grounds for the new trial, advanced by the attorneys for the defendants, except the excessiveness of the verdict, should be overruled," but a new trial nisi was ordered unless the respondent should, within ten days, remit the sum of $16,000. Such was done, and judgment duly entered for plaintiff for $24,000.

In this court, by four exceptions, error is assigned to the trial judge (a) in refusing to grant their motion for a directed verdict upon the grounds on which it was predicated, and which we have quoted above (first and second exceptions); and (b) in refusing a new trial absolute because: "3. * * * in view of the testimony as to the extent of the injuries sustained by the beneficiaries, and in view of the charge of the presiding Judge as to the elements to be considered in assessing damages, the amount of the verdict disclosed such prejudice against the defendants, or sympathy or partiality for the beneficiaries as to indicate that the verdict was in no sense the result of the exercise of the sound judgment of the jury, but was the result of such caprice, prejudice, passion or partiality as to demonstrate that defendants had failed to receive the consideration to which any litigant is entitled at the hands of a jury."

"4. * * * the amount found by the jury, and even the amount which plaintiff agreed to accept in order to avoid a new trial, was a grossly excessive amount to be allowed for all injuries which could have been found from the testimony to have been sustained by the beneficiaries on account of the death of plaintiff's intestate, and, therefore, that there was no sound basis for permitting a final judgment in such grossly excessive amount."

As to exceptions 1 and 2, it will be observed that no issue is made here as to the negligence of appellants-in fact, such is admitted by the very nature of the exceptions, the only question raised thereby being, substantially: Can any other reasonable inference be drawn from all of the evidence than that the intestate, and/or his employee, in whose charge he had placed his person, were guilty of such negligence, and such gross negligence, without which the death of the former would not have occurred, notwithstanding the admitted negligence of appellants?

It is elementary that the pleas of contributory negligence and gross contributory negligence presuppose actionable negligence upon the part of defendants; "that contributory negligence by plaintiff can never exist except when the injury has resulted from the negligence of the defendant as a 'concurring proximate cause"' (Wilson v. Sou. Ry. Co., 73 S.C. 481, 53 S.E. 968, 975, and authorities therein cited); and that the burden of establishing these affirmative defenses, by the preponderance of the evidence, rests upon defendants. And, in ruling upon motions for directed verdicts, trial judges must consider the evidence in its most favorable light to the establishment of plaintiff's cause of action. We have examined, at much length and with great care, the testimony, together with the exhibits, which are most enlightening, and it is patent that there was substantial evidence tending to establish the material allegations of the complaint, particularly those which relate to the dangerous nature of the crossing and the alleged negligent obstruction of the view of northbound passengers upon the highway; and, while it is true that the jury, not improperly, perhaps, might have resolved the issues of fact as to proximate cause, contributory negligence, and contributory gross negligence favorably to appellants, all members of this court are agreed that we cannot say, as a matter of law, that the only reasonable inference to be drawn from the evidence is that the death of respondent's intestate was due to his own contributory negligence and contributory gross negligence, or to that of the party in whose charge he had placed his person. There was no error in submitting these issues to the jury.

Addressing our inquiry to exceptions 3 and 4, it may be noted that the "Transcript of Record" does not disclose, specifically, upon what grounds the motion for new trial was made in the court below. Indeed, the only suggestion therein contained, tending to show that a proper basis was laid below for consideration here of these exceptions, is to be found in the following excerpt from the order of the trial judge, refusing a new trial absolute, but granting a new trial nisi: "I reached the conclusion that all the grounds for the new trial, advanced by the attorneys for the defendants, except the excessiveness of the verdict, should be overruled."

This lone reference to the grounds upon which motion for new trial was made is not sufficient, in our opinion, to show that the verdict was assailed below upon the precise grounds, and for the same reasons, now set forth in these exceptions, and, under the rules and decisions of ...

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