Mozingo v. Atlantic Coast Line R. Co., 16558

Citation220 S.C. 323,67 S.E.2d 516
Decision Date08 November 1951
Docket NumberNo. 16558,16558
PartiesMOZINGO v. ATLANTIC COAST LINE R. CO.
CourtUnited States State Supreme Court of South Carolina

James P. Mozingo, III, John L. Nettles, Darlington, for appellant.

Paulling & James, Darlington, W. S. Houck, Florence, for respondent.

BAKER, Chief Justice.

This was an action brought to recover damages for injuries to the person and property of the appellant sustained in a collision between a Panel Truck owned and driven by him, and one of the respondent's box cars at a crossing in the city limits of Hartsville, in the County of Darlington, at about 7:15 on the night of October 20 1948. The appellant, while operating his truck on U. S. Highway No. 15-A, ran into a box car of the respondent which was on a spur track of the respondent leading into the premises of Enterprise Lumber Company, which track crosses said highway at that point. The box car had been spotted on the siding or spur track on the premises of the lumber company some distance from the highway, but after the locomotive and train crew of the respondent had left, it drifted onto the highway, about the center thereof, and there remained about 30 minutes before the appellant drove his truck into and against it.

To the naked eye, this spur track extending into the premises of said lumber company appeared to be level, and in spotting cars thereon, it was not customary to set the brakes on a spotted car, but the train crew would place a chock under the wheels of the car to guard against its rolling back on the highway, which was done in this instance. However, for some unknown reason this car, despite the chocking of the wheels, rolled over the chock and back onto the highway, which was the first box car that had ever rolled back, although many box cars had been theretofore placed on this spur track on the premises of this lumber company and chocked just as was this car. The box car had both doors closed.

The complaint alleged that the appellant's injuries were caused by the negligent, wilful and wanton acts of the respondent. The answer of the respondent denied negligent, wilful, or wanton conduct on its part, and set up the defense of contributory negligence and contributory wilfulness on the part of the appellant.

The case was tried before Honorable Steve C. Griffith as the presiding Judge, and a jury, on September 20th and 21st, 1920. At the close of all the testimony, the respondent made a motion for a direction of verdict in its behalf, which motion was refused, and the case submitted to the jury, who returned a verdict for the appellant (plaintiff) in the amount of $2300.00, actual damages. The respondent then made a motion for judgment nothwithstanding the verdict of the jury, or for a new trial in the alternative.

The only ground of this motion pertinent to the issue here, and which is the same as one of the grounds upon which respondent moved for a direction of verdict, is as follows: 'That the evidence conclusively establishes that plaintiff attempted to cross the defendant company's track without exercising any care for his own safety or the safety of his truck (automobile) and that such conduct on his part constituted negligence, gross and wilful negligence, recklessness, wilfulness and wantonness, and contributed to the injuries complained of, as a proximate cause, withou which they would not have occurred, and that the trial judge erred in not so holding.'

The trial Judge, in a carefully prepared order, granted respondent's motion for judgment notwithstanding the verdict of the jury, and on the ground that the appellant's contributory negligence precluded him from recovering a verdict against the respondent. It is from such order that the appeal comes to this Court, and on the sole exception that the trial Judge erred in granting respondent's motion, 'the error being that more than one reasonable inference can be drawn from the evidence, and hence his Honor was in error in holding that as a matter of law the plaintiff was guilty of contributory negligence.'

The issue raised by the appeal requires that we briefly state the conditions and circumstances prevailing at and shortly prior to the time the appellant collided with the box car of the respondent. (It is of course conceded that the respondent was negligent in permitting the box car to be on the highway obstructing passage of vehicles thereover. It is further conceded that Highway 15-A is a much traveled highway, being one of the main arteries from the North to the South.)

When the employees of Enterprise Lumber Company learned that the box car of the respondent which had been placed by its warehouse door had rolled back onto the highway, they immediately undertook to protect the traveling public against the danger of a collision. They dug a hole in the dirt opposite the west end of the box car between the rails of the track extending over on the premises of the lumber company, poured about eight quarts of kerosene therein, and with croker sacks placed thereon and therein, lighted the sacks and kerosene, which made a fire which reached up four feet or more, and made the box car visible to the occupants of vehicles approaching; stationed flagmen to the north and south of the crossing to further warn approaching traffic, but we are interested here in only the warnings to the south of the crossing, the side from which the appellant approached the crossing. In addition to the large fire built to the west of the box car, a flambeau made from kerosene soaked croker sacks and put in a water bucket, placed in the center of the highway 240 feet from the crossing, was burning, and a colored man stood in the road at that point waving a white towel when traffic approached from the South. In addition to this warning, Mr. Lawrence Anthony stood in the highway 33 steps or between 80 and 90 feet south of the crossing waving a flash light as traffic approached, and Mr. Roy Windham stood in the highway between where Mr. Anthony was standing and the crossing, waving a flash light. Prior to the time that the appellant collided with the box car, a minimum of fifty automobiles and trucks, 40 per cent. of which approached from the south side, had been successfully stopped or slowed down, and guided around the west end of the box car without mishap. There were others at the scene who assisted in the guiding of automobiles, trucks and other vehicles around the car, among whom were Mr. H. T. Hopkins and Mr. C. T. Jordan.

The highway was straight for a distance of 600 feet south of the crossing and at the time the appellant was approaching the crossing there was no other traffic on this stretch of the highway, either coming or going; and there was nothing to prevent the appellant from seeing the warnings given. The appellant was familiar with this crossing which he frequently used, and the weather was clear, vision being obscured only by the natural darkness of night.

The speed at which appellant was driving as he approached the crossing and until within 54 feet thereof was estimated at 50 miles per hour by three substantial white witnesses for the respondent. One witness, Mr. Anthony (who was standing in the highway waving a flash light 80 or 90 feet from the crossing), testified that the truck which the appellant was driving did not slow up as it passed the bucket containing the burning flambeau 240 feet from the crossing, and that as the truck approached him he flagged it by waving his flash light just as long as he could stay on the highway without getting hit, and then as he expressed it, he literally dived out of the way of the truck, and at that time the truck was being driven at 'something like 50 miles an hour.'

The appellant was his only witness. He testified that as he knew he was in the city limites of Hartsville, and having dimmed his lights some distance out for a car he was meeting, he kept them on dim and slowed down his speed to 30 or 35 miles an hour, and that this was the speed at which he was driving when he approached the crossing; that he did not see a flambeau in the highway, and did not see anyone on the highway trying to stop him; that he did not see the box car on the crossing until he was 'right into it.' (He also testified that he didn't see the vox car until he hit it); that he applied his brakes before hitting the box car; that he was not going 30 miles an hour when he collided with the box car; that by applying the brakes he could stop the panel truck he was driving, within 50 feet at a speed of 30 miles per hour; that it showed on the pavement for several days where he applied his brakes before the collision.

It is undisputed that the wheels on the truck dragged upon the application of the brakes, for a distance of 54 feet before the truck hit the box car, and with considerable force.

It will be noticed that following the collision, appellant was carried to Byerly Hospital at 7:20 on the same night, where he was examined by Dr. Barney F. Timmons, who could find no evidence of any injury, but who had the appellant hospitalized for observation 'as he was intoxicated and it was difficult to evaluate his complaints.' On October 25, the fifth day thereafter, Dr. Timmons again examined appellant and could find no evidence of any injuries. However, the appellant denied that he had been drinking intoxicants either before or after the collision, and of course if the case had depended on this issue alone, it would have been...

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5 cases
  • Broom v. Southeastern Highway Contracting Co., Inc.
    • United States
    • South Carolina Court of Appeals
    • 15 Octubre 1986
    ...Field v. Gregory, 230 S.C. 39, 94 S.E.2d 15 (1956), Utsey v. Williams, 229 S.C. 176, 92 S.E.2d 159 (1956), Mozingo v. Atlantic Coast Line R., 220 S.C. 323, 67 S.E.2d 516 (1951), and Taylor v. Atlantic Coast Line R., 217 S.C. 435, 60 S.E.2d 889 (1950), held that the trial judge should have g......
  • Rock v. Atlantic Coast Line R. Co.
    • United States
    • South Carolina Supreme Court
    • 30 Octubre 1952
    ...Carolina Railroad Co., 213 S.C. 413, 49 S.E.2d 725. Also, Funderburk v. Powell, 181 S.C. 412, 187 S.E. 742; Mozingo v. Atlantic Coast Line Railroad Co., 220 S.C. 323, 67 S.E.2d 516. We are not prepared to hold as a matter of law that the respondent was herself guilty of gross contributory n......
  • Field v. Gregory
    • United States
    • South Carolina Supreme Court
    • 7 Agosto 1956
    ...veredicto should have been granted. Taylor v. Atlantic Coast Line Railroad Co., 217 S.C. 435, 60 S.E.2d 889; Mozingo v. Atlantic Coast Line Railroad Co., 220 S.C. 323, 67 S.E.2d 516.' The evidence in this case required a submission of the issue of punitive damages to the jury. The violation......
  • Utsey v. Williams
    • United States
    • South Carolina Supreme Court
    • 5 Abril 1956
    ...veredicto should have been granted. Taylor v. Atlantic Coast Line Railroad Co., 217 S.C. 435, 60 S.E.2d 889; Mozingo v. Atlantic Coast Line Railroad Co., 220 S.C. 323, 67 S.E.2d 516. In the village of Grover Highway No. 15, which runs approximately north and south, is an asphalt road 54 fee......
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