Norwood v. Atl. Coast Line R. Co, 15587.

• Citation: 27 S.E.2d 803
• Decision Date: 22 November 1943
• Docket Number: No. 15587.,15587.
• Court: United States State Supreme Court of South Carolina
• Parties: NORWOOD. v. ATLANTIC COAST LINE R. CO. et al.

27 S.E.2d 803

NORWOOD.
v.
ATLANTIC COAST LINE R. CO. et al.

No. 15587.

Supreme Court of South Carolina.

Nov. 22, 1943.

[27 S.E.2d 804]

Appeal from Common Pleas Circuit Court of Darlington County; G. B. Greene, Judge.

Action by Pearl Norwood, as administratrix of the estate of John A. Norwood, deceased, against the Atlantic Coast Line Railroad Company and another, to recover for the death of deceased when an automobile in which deceased was riding was

[27 S.E.2d 805]

struck by named defendant's train. From a judgment for plaintiff, defendants appeal.

Affirmed.

Dargan & Paulling, of Darlington, John F. Wilmeth of Hartsville, and Woods & Woods, of Marion, for appellants.

Mozingo & Watts, of Darlington, for respondent.

E. H. HENDERSON, Acting Associate Justice.

John A. Norwood was killed when the automobile in which he was riding came into collision with a freight train of the Atlantic Coast Line Railroad Company at the Washington Street crossing in the town of Darlington. This action for wrongful death was brought by his administratrix for the benefit of his widow and children, and was tried before his Honor, Judge G. B. Greene, and a jury in the Court of Common Pleas for Darlington County, resulting in a verdict in favor of the plaintiff for $35,000 actual damages.

The plaintiff in her complaint contended that the defendants, the railroad company and its engineer, were negligent and wilful in failing to keep a proper lookout, in running the train at a dangerous rate of speed, in failing to give the statutory signals or any warning of the approach of the train, in maintaining an unsafe and dangerous crossing by placing certain freight cars on a nearby side track, and in failing to stop the train after observing the automobile.

The answer denied the material allegations of the complaint, and alleged that the deceased and the driver of the automobile were engaged in a joint and common enterprise, and that both of them were guilty of such contributory negligence and such gross and wilful contributory negligence and wilfulness as to defeat a recovery.

At the conclusion of the testimony the trial Judge, in refusing a motion for a directed verdict, ruled that under the evidence the occupants of the automobile were engaged in a common enterprise. Any negligence or wilfulness of the driver would therefore be imputed to the plaintiff's intestate. The driver also had "charge of his person, " under the crossing statute.

Although there are twelve exceptions, they may be grouped in such a way that only four grounds for a reversal of the judgment are assigned: (1) Error in refusing to direct a verdict for the defendants on account of the failure of proof by the plaintiff of her cause of action; (2) in refusing to direct a verdict for the defendants on account of contributory negligence, recklessness and wilfulness of the decedent and the driver of the automobile; (3) in admitting in evidence certain probate records, and in holding that they were sufficient; and (4) in not seeking to reduce the verdict on the defendants' motion for a new trial.

There was a sharp conflict in the evidence as to the giving of the statutory signals, the giving of warning under the common law, the speed of the train, and the presence of freight cars on the side track. The defendants' witnesses testified positively that the signals were properly given, that the train was moving at a speed of about fifteen miles an hour at the crossing, and that there were no cars at all on the side track. However, we think that there was evidence on the part of the plaintiff as to the operation of the train and the failure to give the statutory signals, as pointed out below, which required the submission to the jury of the issues of negligence and wilfulness.

In view of the positive evidence of the plaintiff's witnesses we are required under well recognized rules to consider that there was a neglect in giving the statutory signals and as a result the company would be liable unless it is shown that either the intestate or the driver of the automobile was guilty of "gross or wilful negligence, " contributing to the injury as a proximate cause. Code § 8377. So the decisive question is: Does the evidence, together with the reasonable inferences therefrom, show as a matter of law that either Mr. Norwood or the driver of the automobile was guilty of such gross or wilful negligence contributing to the injury?

The collision occurred at about 9:45 P.M., on March 31, 1941. The railroad company has at the Washington Street crossing three tracks, the main line being in the middle with a track on either side. The train was a freight train running from Hartsville to Florence and consisting of an engine and eighteen cars, one of which was the caboose.

The main line of the railroad comes into Darlington from a northerly direction, curves to the east or left and comes out from behind the passenger station, which is located near the Broad Street crossing. The track there straightens out and proceeds to Washington Street, 289 feet distant, which it crosses at an angle of 132 de-

[27 S.E.2d 806]

grees, approximately from the northwest to the southeast.

The Timmonsville highway enters the town on Washington Street and runs substantially north and south. This section of town is thickly populated. Approaching the crossing from the south, or Timmonsville, side there is a continuous row of...