Nettles v. Southern Ry. Co.

• Decision Date: 24 September 1947
• Docket Number: 15990.
• Citation: 44 S.E.2d 321,211 S.C. 187
• Parties: NETTLES v. SOUTHERN RY. CO. et al.
• Court: South Carolina Supreme Court

44 S.E.2d 321

211 S.C. 187

NETTLES v. SOUTHERN RY. CO. et al.

No. 15990.

Supreme Court of South Carolina

September 24, 1947

Appeal from Common Pleas Circuit Court of Orangeburg County; J Robert Martin, Jr., Judge.

Action by Thomas L. Nettles, as administrator of the estate of Perry Donald Nettles, against the Southern Railway Company and Harry McNeer to recover for the death of Perry Donald Nettles, who was struck by the Southern Railway Company's train which was operated by Harry McNeer. The case resulted in a verdict against the Southern Railway Company alone for $2,000 damages, and the plaintiff moved for a new trial as to both defendants. From an order granting a new trial, the defendants appeal.

Moss & Moss, of Orangeburg, and Frank G Tompkins, of Columbia, for appellants.

J Stokes Salley an A. J. Hydrick, both of Orangeburg, for respondent.

OXNER Justice.

Perry Donald Nettles, a minor approximately five years of age, was struck and killed on March 14, 1946, by a northbound passenger train of the Southern Railway Company on a trestle in the City of Orangeburg, South Carolina.

This action was instituted under the provisions of Sections 411 and 412 of the Code of 1942, familiarly known as Lord Campbell's Act by the administrator of his estate, for the benefit of his father and mother, against the Southern Railway Company and the engineer operating the train, Harry McNeer, to recover damages for alleged wrongful death. The case was tried in October, 1946, and resulted in a verdict against the Southern Railway Company alone for $2000 actual damages. The plaintiff made a motion for a new trial as to both defendants. The motion was granted as to the Southern Railway Company on the ground that the verdict was inadequate and as to the engineer on the ground that as to him the verdict was contrary to the greater weight of the evidence. Both defendants have appealed from the order granting a new trial. The question as to whether the other of the lower Court is appealable was raised by the plaintiff but later abandoned and we therefore shall not be understood as passing upon it.

The only question for determination is whether the lower Court erred in refusing a motion by defendants for a directed verdict in their favor made at the conclusion of the testimony, and in refusing a motion by the defendant Southern Railway Company for judgment non obstante veredicto made after the verdict was rendered. Defendants contend that there was no evidence of actionable negligence on their part and that the parents of the child were guilty of gross contributory negligence and reckessness.

The trestle on which the child was killed, known as the Atlantic Coast Line overpass, is about 75 feet long and located near the southern corporate limits of the City of Orangeburg. The track of the Southern Railway in this vicinity runs approximately north and south. Approaching the trestle from the south the track is straight and practically level for a number of miles. About three-fourths of a mile south of the trestle the track is intersected by Broughton Street and about a thousand feet south of the trestle by Whaley Street.

Between the Whaley Street crossing and the trestle the track is on an elevated roadbed and there are several footpaths leading up the embankment, across the track, and down on the other side. There are also footpaths along each side of the track. At both ends of the trestle there are footpaths leading down each side of the embankment. North of the trestle there are similar paths bisecting and paralleling the track. All of these paths have been used with the knowledge of the Railway Company for a number of years. There are no signs forbidding trespassing on the trestle and the evidence shows that pedestrians frequently walk across it, although no walkway is provided for their use. The residential area in this vicinity is rather thickly populated and there are quite a number of industrial establishments. State Highway No. 2, known in the City as South Boulevard, parallels the eastern side of the railroad right of way. Along this highway across from the railroad track there is a paved sidewalk.

The fatal accident occurred about 6:15 P.M. which was before sunset. The weather was fair and visibility good. The Nettles family resided on Whaley Street about three or four hundred feet west of the crossing. They had lived here for two or three months. The mother of Donald, the deceased, testified that about six o'clock she found that she had no bread for supper and told him and Carroll Jean Stone, a niece visiting in her home who was then eight years of age and in the third grade in school, to go to Clinkscales' store and get a loaf of bread. This store is located on the eastern side of South Boulevard, which is across the railroad and several blocks from the Nettles home. She further testified that Donald had been with her to this store on other occasions and she had several times sent him alone to make purchases there; that she knew a northbound train was due about 6:15 and stood on the porch and watched the children until they were across the railroad; that she then went into the sunroom where she continued to watch for their return; that the train passed over the crossing about 6:15 and shortly thereafter Carroll Jean returned and informed her of the fatal tragedy. The father of Donald was at work at this time.

The little girl, Carroll Jean, testified that she arrived at the Nettles home about 5:30; that shortly thereafter her aunt told Donald to get some bread and requested her to go with him and hold his hand when crossing the railroad and highway; that she and Donald went to Clinkscales' store but found it closed and then decided to get the bread at Irick's store. This store is located on the western side of the railroad at the corner of the right of way and Sellers Avenue, a distance of about a third of a mile from Clinkscales' store and about 1300 feet north of the trestle. She further testified that she and Donald left Clinkscales' store and proceeded along the path leading from this store up the embankment to the track (one of the plats in evidence shows that this path is 437 feet south of the trestle); that upon reaching the track she looked in both directions for trains but saw none; that they then proceeded north along the footpath by the track; that when they reached the whistle post, shown on the plat to be 150 feet south of the trestle, they heard the train blow and looked for but did not see the train which was then approaching from the rear; that they continued along the track and about the time they started across the trestle heard the noise of the oncoming train; that they then started running across the trestle; that Donald stumbled several times; that she got across but Donald stumbled and fell a third time at a point about four crossties from the northern end of the trestle where he was struck by the train. According to respondent's witnesses, the train was traveling at a speed of between 50 and 60 miles per hour and did not slow up until after the accident.

The fireman testified that the train, consisting of an engine, express and baggage cars and two coaches, was traveling about 50 miles per hour when passing over the Broughton Street crossing; that shortly after passing this crossing he glanced up the track and saw that the Whaley Street crossing was clear; that when about two or three hundred feet south of the Whaley Street crossing (about 1200 feet south of the trestle) he commenced wetting the deck, which he said is done for the purpose of settling the coal and dust on the floor so as to prevent dust particles or cinders from flying in his or the engineer's face; that he was so engaged, and for this reason kept no further lookout, until about the time the front of the engine had passed over the trestle; that at this point he looked out and saw an object lying near the track which he thought was a child and immediately called this to the attention of the engineer who proceeded to stop the train. He further testified that the train was traveling about 35 or 40 miles per hour at the time it passed over the Whaley Street crossing but said he did not know when the train began slowing down for the Sellers Avenue crossing. (This crossing is 1341 feet north of the trestle.) The engineer testified that he looked and saw that the Whaley Street crossing was clear; that during the period when the fireman was wetting the deck he was looking down to keep the hot water used by the fireman from scalding his legs; that for this reason he kept to lookout from a point 200 feet south of the Whaley Street crossing until the engine was 50 or 75 feet from the trestle (a distance of approximately 1100 feet); and that he never saw the children and knew nothing of the accident until the fireman told him that the engine had struck something. He stated that as he approached the trestle he was slowing down the train for the Sellers Avenue crossing.

We shall first determine whether there is any evidence of negligence or recklessness on the part of appellants. It is contended that the deceased was a trespasser to whom the railroad owed no duty except the negative one of not wantonly or wilfully injuring him; that the railroad company is not required to anticipate the presence of a trespasser upon the track and owes no duty to keep a lookout for him; and that the duty of using ordinary care and diligence toward a trespasser does not arise until his presence on the track becomes known. Appellants, therefore, argue that as the presence of the deceased was not discovered until after the fatal accident, the evidence fails to show any breach of duty on their part.

It is true that ordinarily the failure to keep a lookout for...