Myers v. Atlantic Coast Line R. Co.

• Decision Date: 12 March 1934
• Docket Number: 13802.
• Parties: MYERS v. ATLANTIC COAST LINE R. CO.
• Court: South Carolina Supreme Court

173 S.E. 812

172 S.C. 236

MYERS v. ATLANTIC COAST LINE R. CO.

No. 13802.

Supreme Court of South Carolina

March 12, 1934

Appeal from Common Pleas Circuit Court of Florence County; R. W Sharkey, County Judge.

Action by Deleon Myers against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

F. L Willcox, of Florence, for appellant.

Truluck & Truluck, of Olanta, and P. H. McEachin, of Florence, for respondent.

BLEASE Chief Justice.

The first trial of this case, resulting in a judgment in favor of the plaintiff, was reversed by this court, and the case remanded to the county court of Florence county for a new trial. See Myers v. A. C. L. Railroad Co., 169 S.C 310, 168 S.E. 730. We held that, under the terms of section 8356 of the Code, a railroad company was not required to maintain at a road crossing two crossing signs, but that one such sign, erected in the proper manner, with the words "Railroad Crossing" printed in large letters on each side thereof, was a compliance with the law. Under that construction of the statute, we concluded there was reversible error on the part of the county judge in refusing the defendant's motion to strike from the complaint, as irrelevant and redundant matter, and as not stating a cause of action, certain language therein, which appeared to declare as an act of negligence on the part of the railroad its failure to maintain two crossing signs at the crossing where the plaintiff's alleged injury occurred.

In our former decision, we also held that the defendant's motion for a directed verdict, "made on the ground that plaintiff's injury was due to his violation of law, and to his negligence and gross negligence on his approach to the crossing," was properly refused since "The conflicting testimony required the submission of these questions to the jury."

The second trial, now being reviewed in an appeal by the defendant, again resulted in a verdict and judgment for the plaintiff; the amount being considerably larger than that he first obtained.

Material allegations of the complaint were stated in full in the former opinion of the court, and it is not necessary to here repeat all of them. It is sufficient to say that in an amended complaint the plaintiff charged that in a collision of the automobile, which he was driving, with a box car of the defendant, at a grade crossing on a public highway, he received serious bodily injuries, occasioning him great damage, which resulted from the negligence, willfulness and recklessness of the defendant in the stopping of one of its trains on a crossing on a much-used public highway and blocking and obstructing, in the nighttime, for an unreasonable length of time, the crossing, without taking any precaution, by way of light, sign, signal, flagging, or otherwise, so as to warn persons, especially a stranger to the highway (and such was the plaintiff), traveling and using the highway, of the approaching by a traveler of a railway crossing that was blocked and obstructed by a box car, and thereby made dangerous.

The exceptions of the appellant test the correctness of the ruling of the trial judge, on its demurrer, that the complaint, as amended, stated a cause of action, and the refusal to direct a verdict for the defendant, on the ground that the testimony for the plaintiff was insufficient to show a cause of action against it.

At the beginning, we are met with a suggestion on the part of the county judge, appearing in his rulings on the trial, and particularly referred to by him in his order refusing a motion for a new trial, which position it seems also is advanced by the respondent, that the questions here made by the appellant have been concluded already against it by the former decision, under the principle of the "law of the case." Probably, the suggested position is correct (Cato v. Atlanta & C. A. L. Ry. Co., 164 S.C. 123, 162 S.E. 239), but we do not feel disposed to rest our determination on that ground.

The questions involved in the appeal have been stated in both of the briefs submitted from the viewpoints of the respective counsel. With a due consideration of these, however, we prefer to state what we conceive to be the real and sole question for our decision.

When it is not alleged in the complaint, and sustained by some evidence, that the provisions of sections 5829 and 8380 of the Code have been violated by a railroad company, but it is alleged, and supported by some evidence, that the company has blocked, with a box car a public highway crossing, in a rural community, in the night, for an unreasonable length of time, without taking any reasonable precaution in the situation to warn travelers of the obstruction, and a traveler, in the absence of contributory negligence, or when the evidence as to any contributory negligence is conflicting, is injured in a collision of the vehicle occupied by him with the box car, should the case be submitted to the jury?

In section 5829, it is made unlawful for a railroad company to permit one of its cars or locomotives to be or to remain upon or across any street, public road, or highway for a period longer than five minutes, "after notice to remove said cars has been given to conductor, engineer, agent or such other person in charge of said train." By section 8380, the Railroad Commissioners are authorized, if they deem it necessary, upon the application of the county supervisor of a county, to require a railroad corporation "to have a stationary flagman at any crossing, the importance of which may demand it."

Able counsel for the appellant has discussed strongly and lucidly his position, to the effect that an affirmative answer to the stated question would make nugatory the cited Code provisions; and to support that position he has referred to several cases from jurisdictions other than this. It is said, and likely correctly so, that the exact point has not been decided by this court. Nevertheless, we are impelled to the conclusion that several of our decisions, so nearly in point, some of them conceded by appellant's fair counsel to have "possibly some bearing," properly analyzed and construed, require an affirmative answer to the question. To these we turn our attention.

First to be noticed is Littlejohn v. Railroad Co., 49 S.C. 12, 26 S.E. 967, 969, not cited by appellant. The injury to the traveler, there complained of, occurred at a crossing over a public street of the town of Gaffney, obstructed by cars of the railroad company, while the traveler was passing between two of the cars, and from a reading of the court's decision we have the impression that the accident occurred in the daytime. The court considered the statutory provisions now contained in sections 8355 and 8377; the first concerning "Signals to Be Given at Crossings," and, the second, "Injuries at Crossings." Neither section 5829 nor 8380 was referred to; in fact, the former was not enacted until March 23, 1896 (22 St. at Large, p. 235), almost five years after the accident, out of which the Littlejohn Case grew. While two of the three members of the court who heard the case only concurred in the result, Mr. Justice Gary, in his opinion, said: "If a railroad company obstructs a highway for an unreasonable length of time, or for a longer time than the law permits, unless it is without fault, the railroad company thereupon becomes a trespasser; and if a person makes a reasonable use of its cars without injury to them at a crossing, for the sole purpose of crossing the rail road track, the railroad company is estopped from saying that he is a trespasser. Having brought about the necessity, it cannot take advantage of its own wrong."

In Prescott v. Hines, Director General of Railroads, 114 S.C. 262, 103 S.E. 543, the injuries to the plaintiff occurred in a collision between an automobile in which he was riding and a train at a street crossing, in the city of Columbia, in the night. No reference to any of the cited statutory provisions appears in the report of the case. Possibly the action involved the alleged violation of a municipal ordinance, but, if so, the court gave no consideration to that. Answering the question made by the railroad company, that a reasonable inference could not be drawn from the testimony of any actionable negligence on its part, Mr. Justice Watts, for the court, said: "There was some evidence by which it was reasonable to infer that there was actionable negligence on the part of the defendant. There was evidence that the train was standing still, blocking one of the most traveled streets in the city of Columbia, and that the cars had no light of any kind upon them, or near them, or any guard or watchman to give warnings; that on the night in question there was a fog or smoke, that made the place where the cars were standing dark, and obscuring the same. *** Under all of the evidence in the case, his honor could not have granted a nonsuit, or directed verdict, as asked for by the defendant, and these exceptions are overruled."

A leading case is Miller v. A. C. L. Railroad Co. and Camp Manufacturing Co., 140 S.C. 123, 138 S.E. 675, 686. The death of plaintiff's intestate occurred, in the nighttime, in a collision between the automobile, in which he was riding, and a train of cars of the Camp Manufacturing Company, being operated on the tracks of the railroad company, the cars standing upon, and blocking, a public crossing in the town of St. Stephens, containing a population of only about six hundred people. Affirming the judgment, this Court, through Chief Justice Watts, said several things pertinent to the inquiry before us:

"The evidence was sufficient to carry the case to the jury that the Camp Company, with consent, acquiescence,

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