Mock v. Atlantic Coast Line R. Co.
| Decision Date | 02 June 1955 |
| Docket Number | No. 17011,17011 |
| Citation | 227 S.C. 245,87 S.E.2d 830 |
| Parties | Willie H. MOCK, as Administrator of the Estate of Hoyt Leroy Mock, Respondent, v. ATLANTIC COAST LINE RAILROAD COMPANY, B. R. Turner and C. A. Neely, Appellants. |
| Court | South Carolina Supreme Court |
Hagood, Rivers & Young, Charleston, for appellants.
Meyer, Goldberg & Hollings, J. Louis Lempesis, Charleston, for respondent.
This action for the alleged wrongful death of plaintiff-respondent's intestate, Hoyt Leroy Mock, was commenced in October, 1951. In addition to the defendant-appellant, Atlantic Coast Line Railroad Company, there were four individuals also named as defendants, but during the trial a verdict in favor of two of these individuals was directed, leaving as the individual defendants, who are also appellants, B. R. Turner, the conductor, and C. A. Neely, the engineer, of the train that was in collision with the automobile in which respondent's intestate was riding.
The complaint alleged that on May 25th, 1951, respondent's intestate, a boy of the age of twelve years, was riding in an automobile with his mother, three brothers and a sister, which came to a stop on the east side of Liberty Hill crossing in Charleston County to permit the Atlantic Coast Line freight train No. 212, northbound, to pass. It is also alleged therein that after the rear of said northbound train had crossed a reasonable distance, the driver of the automobile, after looking in both directions, seeing no other train approaching, proceeded slowly to undertake to pass over said crossing, when the Atlantic Coast Line freight train Extra No. 1805, southbound, obscured from her view by the northbound train, without warning and at an excessive rate of speed, ran into said automobile which was then on the southbound track, fatally injuring plaintiff's intestate. The complaint further charges that all of the defendants-appellants were jointly and concurrently negligent, reckless and willful in numerous specifications of such negligence, recklessness and willfulness, including the violation of the crossing statute.
The answer of the defendants denied all of the material allegations of the complaint and set up the defenses of contributory negligence, recklessness and willfulness of the driver of the automobile involved, and alleged that respondent's intestate and the driver of the automobile in which he was riding, without paying any attention to the southbound train or to its signals, and without taking any precautions, went from a safe place on the east side of the crossing in broad daylight, on a clear afternoon, behind the rear of the northbound train as it cleared the crossing, directly in front of the southbound train, so close in front of the southbound train as to make the collision which ensued the direct and proximate result of the negligence and reckless conduct of the respondent's intestate and of the driver of the automobile in which he was a passenger.
The answer also set up the defense under Section 8377 of the Code of 1942, that Mrs. Mock, the mother of respondent's intestate, who was driving the automobile, and who was in charge of his person, was guilty of gross and willful negligence in entering upon the southbound track when if she had again looked to the north before entering upon the said track she would have easily seen the oncoming southbound train; and the further defense that the automobile in which respondent's intestate was riding was the property of Willie H. Mock individually, and was being driven by his wife for a family use or purpose, and that Mrs. Mock was the agent of plaintiff in driving the said automobile for such family use or purpose, and that this action having been brought for the benefit of the said Willie H. Mock and his wife, Thelma Cook Mock, parents of the intestate, the contributory gross and willful negligence of Mrs. Mock as agent for her husband, Willie H. Mock, will bar recovery by respondent for the benefit of the said parents.
Prior to the trial of this case appellants moved to strike certain allegations from the complaint and duly reserved all rights under their motion to strike. The motion was heard by Honorable T. B. Greneker, presiding Judge, who by order dated January 29, 1952, refused practically all of appellants' requests to strike, and appellants duly appealed from said order. During the trial of the case the appellants renewed their objections to certain allegations of the complaint noted under the motions to strike by objecting to the admission of certain testimony, and in most instances such testimony was excluded by the trial Judge.
In the trial Judge's charge to the jury, and at the request of appellants' counsel, there was submitted to the jury for their decision in addition to any verdict they might render, the following question: 'Did the southbound train, which collided with the automobile, give the statutory signals, by ringing its bell or blowing its whistle, when it approached the Liberty Hill crossing?' The answer to this question by the jury was 'No.'
Appellants also argued a motion, which had been duly noticed, before Honorable J. B. Pruitt, presiding Judge, for an order requiring respondent to elect as to whether he would rely on the cause of action alleged in the complaint at common law or would rely on the cause of action alleged in the complaint under the provisions of Sections 8355 and 8377 of the Code of 1942, commonly known as the crossing statutes. This motion was noticed to be heard on February 18, 1952, but whether it was heard on said date becomes immaterial in that Judge Pruitt filed his order March 28, 1952, refusing the motion, from which due notice of intention to appeal was given.
Under the circumstances of this case we do not find it necessary to pass upon whether the plaintiff-respondent should have been required to elect whether he would try his case under the statute law or under the common law. Of course, the main difference ordinarily would be that under the crossing statute the negligence and recklessness and willfulness of the driver of the vehicle would be imputable to a passenger in the vehicle, whereas under the common law it would not be imputable. However, this case has been brought for the benefit of the mother and father of the respondent's intestate. The automobile in which respondent's intestate was riding was owned by his father and driven by his mother, and at the time of the collision the said automobile was apparently being used at least partially for a family use or purpose, and if the jury had found that she was guilty of gross and willful negligence, the parties for whose benefit this action was brought could not have recovered. Therefore, it makes no difference that under the common law the negligence of the driver of a car is not imputable to a passenger when the driver and passenger are engaged in a common enterprise, or the passenger has authority to direct the control of the car.
While we are close to this subject it would be more logical to now, rather than later, take up appellants' Exceptions 9 and 12, and we quote from the record:
* * *
* * *
Request to Charge No. 10:
'And in charging the following language:
when the only reasonable inference to be drawn from the testimony is that the driver of the automobile was driving for a family use or purpose and was the agent of the Plaintiff, Willie H. Mock, in driving the said automobile.'
The record discloses that Mrs. Mock was using the car for a family purpose to an extent, but it also appears from the record that at the time the car she was driving was in collision with the train she was 'delivering Stanley Products, Easy Cleaner and a bottle of shampoo to Mrs. Frances Barrs and Mrs. Dorothy Buck.' The record does not disclose for whose benefit she was delivering these products, and, therefore, in the light of this testimony it cannot be said that the trial Judge erred in leaving it to the jury to decide whether at that time she was acting as the agent of her husband rather than charging the jury as a matter of law that she was at such time his agent. However, the verdict of the jury sets at rest the ultimate issue since the jury found that Mrs. Mock, the driver of the automobile, was not grossly and willfully negligent in its operation.
As shown hereinabove in quoting from the record, counsel for appellant agreed that the charge of the trial...
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