Mize v. Blue Ridge Ry. Co., 16478

• Decision Date: 19 March 1951
• Docket Number: No. 16478,16478
• Citation: 64 S.E.2d 253,219 S.C. 119
• Parties: MIZE v. BLUE RIDGE RY. CO. (two cases).
• Court: South Carolina Supreme Court

Page 253

64 S.E.2d 253

219 S.C. 119

MIZE v. BLUE RIDGE RY. CO. (two cases).

No. 16478.

Supreme Court of South Carolina.

March 19, 1951.

Watkins & Watkins, Anderson, J. Pat Miley, Walhalla, for appellant.

John M. Schofield, Walhalla, for respondent.

PER CURIAM.

These cases were argued during the June, 1950, term of this Court. On September 25, 1950, an opinion was filed affirming the judgments rendered by the Court below. Subsequently a petition for a rehearing was granted and certain phases of the case were reargued at the December, 1950 term. This opinion will be substituted for the opinion heretofore filed.

About 7:00 p. m. on August 18, 1948, a motorcycle upon which Troy Donald Mize and his nephew, Clyde Edward Mize, seventeen and fifteen years of age, respectively, were riding, collided with a train of the Blue Ridge Railway Company at a crossing in the town of West Union, Oconee County. Troy Mize was operating the motorcycle and his nephew was sitting behind him. Both were killed instantly. These actions were brought to recover damages for the alleged wrongful death of each boy. The cases were tried together and resulted in a verdict for plaintiff in each case for $5000. The only question for determination on this appeal is whether the Court erred in refusing a motion by the Railway Company for a directed verdict upon the grounds that there was no proof of negligence on the part of the defendant and that the plaintiff's intestates were guilty of gross contributory negligence.

Main Street of the town of West Union crosses the track of the Blue Ridge Railway Company at about a right angle. The street is paved and approximately 40 feet wide, with sidewalks on each side. It forms a part of the State Highway between Seneca and Walhalla. Plaintiff's intestates were traveling along this street in the direction of Walhalla. The train involved in the collision was a mixed one, consisting of 23 cars. It left the depot at Walhalla, a distance of about a mile from the crossing in question, more than two hours behind schedule, and approached this crossing at a speed of about twenty miles an hour. After the engine had passed over the crossing, the motorcycle struck the rear of the tender. The engineer testified that although he kept a proper lookout, he did not observe the motorcycle until it was about 100 feet from the crossing, and it seems to be undisputed that the operator of the motorcycle could not have seen the approaching train until he reached a point approximately 150 feet from the crossing. While not definitely stated in the record, it is fair to assume from the testimony that the obstruction to the view was due to residences and trees on each side of the street.

It is alleged in the complaint that the engineer failed to give the crossing signals, that he failed to keep a proper lookout, and that the headlight was not burning. There is no evidence sustaining the allegation that the engineer failed to keep a proper lookout. There is a conflict in the testimony as to whether or not the headlight was on. There is also some dispute as to whether it was dark enough to require a headlight. While there is testimony to the effect that the street lights had been turned on and that it was beginning to get dark, one witness testified that at the time of the accident he was sitting on his front porch and was able to read a newspaper without difficulty. However, in determining whether or not defendant's motion for a directed verdict should have been granted, we need only consider the allegation that the engineer failed to give the statutory signals. It is the contention of the Railway Company that the plaintiffs' evidence on this issue is of a negative character and entirely too uncertain and indefinite to prevail against positive testimony of various disinterested witnesses that the bell was rung and the whistle blown as the train approached the crossing.

There are several crossings between Walhalla and West Union, a distance, as above stated, of about a mile. The engineer and fireman testified that the bell was started as the train left Walhalla and rang continuously until after the accident and that the whistle, on account of the close proximity of the various crossings, was blown almost continuously. In addition to this testimony, five persons who at the time of the accident were within a block of the crossing, testified positively that the bell was ringing and the whistle blowing as the train approached.

We turn now to the testimony offered by the plaintiffs on this issue. Two ladies who were walking along the sidewalk of Main Street at a point approximately 200 feet from the crossing, testified that they noticed plaintiff's intestates as they passed on a motorcycle; that they did not hear the bell ring; that they heard the whistle blow for the Kenneth Mills crossing, which the testimony shows was about a half mile from the crossing in question, but did not hear the whistle blow again. Another witness who was employed at an ice plant located between Kenneth Mills and West Union, testified that while sitting on a bench about 150 yards from the railroad track, he heard the train blow for the Kenneth Mills crossing but did not hear it blow again. On cross examination, he testified as follows:

'Q. You just do remember, however, it blew back at Kenneth crossing? A. I did hear it blow at Kenneth crossing.

'Q. And then you didn't listen to see whether it blew any more or not? A. I'm confident that it didn't. Because, I was sitting there and didn't move, and I didn't hear it.

'Q. There wasn't anything to call your attention to the train? You weren't watching the train? Were you? A. No, sir, I was just sitting there.'

Another witness who lived between a half and three-quarters of a mile from the crossing in question and who was sitting on the porch of his home which faced the railroad track, testified in part as follows: 'As I have told you, the train came down at a late hour, off schedule, carrying many cars, without a headlight. It wasn't ringing the bell. It was alarming to me. And I watched it and listened, and so it blew at the crossing above my house and the one below my house, Kenneth Mill Crossing, and I paid particular attention, listening to the noise of it, and so hearing, and I wondered what had happened to it. The hearing died away after it blowed at the Kenneth Mill. I didn't hear it blow any more.'

We think the plaintiffs' testimony was sufficient to warrant submission of the case to the jury on the question of whether the statutory signals were given. It is in direct conflict with that of the engineer and fireman that after leaving Walhalla, the bell rang continuously and the whistle was blown almost continuously. It is true that the testimony of plaintiffs' witnesses to the effect that they did not hear the bell ring or the whistle blow as the train approached the crossing is of a negative nature, but ordinarily in a case of this kind the plaintiff is necessarily confined to that class of evidence. At least two of the witnesses for the plaintiffs were in a favorable position to have heard the crossing signals had they been given. There were no distracting circumstances. We have not only one but several persons similarly situated saying that they did not hear the signals. The fact that these witnesses heard the whistle blow for the Kenneth Mills crossing is indicative of the fact that they were not inattentive.

While plaintiffs' testimony might have been insufficient to support a finding that the statutory signals were not given under the rule followed in some jurisdictions (see extensive...