Norwood v. Atlantic Coast Line R. Co.

• Decision Date: 22 November 1943
• Docket Number: 15587.
• Citation: 27 S.E.2d 803,203 S.C. 456
• Parties: NORWOOD v. ATLANTIC COAST LINE R. CO. et al.
• Court: South Carolina Supreme Court

27 S.E.2d 803

203 S.C. 456

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

No. 15587.

Supreme Court of South Carolina

November 22, 1943

[Copyrighted Material Omitted]

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 degrees, 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 houses, trees, and shrubbery for two and a half blocks on the left of the highway, the last building being a large store occupied by James Epps. The plaintiff's witnesses testified that at the time of the collision two box cars and a gondola were parked on the side track south of the main line, from five to seven feet from the edge of the left side of the highway. Though this is vigorously denied by the defendants, as an appellate Court for the correction of errors of law we must accept all the evidence and the reasonable inferences to be drawn therefrom in the light most favorable to the plaintiff, and so we must assume that the cars were on the side track. These houses, trees, shrubbery, and freight cars presented a continuous obstruction to the view of a traveler to his left until the freight cars were passed.

The freight train was from two to three hours behind its usual time, and plaintiff's witnesses said it was running from forty to forty-five miles an hour. As the train came around the curve beyond the passenger station, the headlight of the locomotive shone upon the Epps store, and did not shine down the track until the engine straightened out at about Broad Street. There is a street light located in the Washington Street intersection a few feet south of the main line on the right of the highway which tended to interfere with a traveler observing the train's headlight shining on the rails. There was evidence that the headlight was not bright, but was a "yellowish" light.

Hazel Norwood, the driver, a son of the deceased, knew of the crossing, and had slowed down to pass it. It appears that he had never been across it before that day. Besides John A. Norwood and the driver, two other men were riding in the automobile, which was a 1937 single seated Dodge coupe. The intestate was sitting in the middle, Wilson C. Norwood on the right, with Mason Melton sitting in his lap. All were good-sized men. They had driven from their home near Hartsville, through Darlington, and to the store of a Mr. Wilcut, a short distance south of Darlington on the Timmonsville highway, and in going there they had passed over the Washington Street crossing at which the collision later occurred, Mason Melton then driving.

Upon returning soon thereafter by the same route to Darlington on their way home, traveling in a northerly direction on Washington Street, the automobile had slowed down near the town limits and was proceeding at about ten to twelve miles an hour as it entered the right of way of the railroad company. The car was under control, the left hand window was open, and the testimony of plaintiff's witnesses is that the driver looked both ways and listened for an approaching train before proceeding to the main line. They testified that the train could not be seen and that no signals were given, by either ringing the bell or blowing the whistle. The weather was a little foggy and misty.

James Epps, standing in front of his store, saw both the train and the automobile coming, and waved and shouted a warning to the occupants of the automobile; but evidently they did not see or hear him. There was testimony that an automobile moving at a speed of ten or twelve miles an hour can be stopped in fifteen to twenty feet.

The plaintiff's witnesses said that when they had passed the obstruction made by the freight cars on the siding, they were then "right on" the main line. The engineer stated that he did not see the automobile until the locomotive was about fifty feet from Washington Street. While there was some testimony that the distance between the side track and the main line was only fifteen or twenty feet, the plat which is in evidence shows a distance of seventy-three and one-half feet, measuring from the center of each track. However, when the driver had reached a place where he could see beyond the box cars, the distance from the front part of the automobile to the point where it would strike a train on the main line was less than sixty feet, in view of the distance between the northern rail of the side track and the southern rail of the main line, the several feet distance between the front of the automobile and the place where the...