Osteen v. Atlantic Coast Line R. Co.

• Decision Date: 11 May 1922
• Docket Number: 10887.
• Citation: 112 S.E. 352,119 S.C. 438
• Parties: OSTEEN v. ATLANTIC COAST LINE R. CO. ET AL.
• Court: South Carolina Supreme Court

112 S.E. 352

119 S.C. 438

OSTEEN v. ATLANTIC COAST LINE R. CO. ET AL.

No. 10887.

Supreme Court of South Carolina

May 11, 1922

Appeal from Common Pleas Circuit Court of Marion County; R. W Memminger, Judge.

Action by W. E. Osteen against the Atlantic Coast Line Railroad Company and another. Judgment for plaintiff, and defendant named appeals. Reversed, and remanded for new trial.

The defendants submitted the following requests to charge:

"I. I charge you that under the law, if a person is injured by a railroad train at a crossing, it does not necessarily follow that such person is entitled to recover damages therefor. One so injured is entitled to recover only when it is shown by the preponderance of the testimony that the injury sustained was due to the negligence of the defendant as a proximate cause.

II. I charge you that the law imposes upon every capable person the duty of observing due care for his own safety, and the safety of the property intrusted to his care, when about to cross a railroad track, which necessarily involves the exercise of his senses. The failure of the engineer to sound the whistle or ring the bell would not relieve a person about to cross a railroad track from the necessity of taking ordinary precautions for his own safety and the safety of property in his custody. Negligence of the employees of a railroad company in these particulars would be no excuse for negligence on the part of one so attempting to cross a railroad track.

III. If you should find from the testimony in this case that plaintiff's agent, the driver of the truck, saw defendant's train fast approaching and attempted to cross immediately in front of same, when so to attempt to cross would be obviously dangerous to a person of ordinary prudence and care, I charge you as a matter of law that, even though defendant failed to give the signals required by statute, such acts on the part of the plaintiff's agent would constitute gross contributory negligence, and if such gross contributory negligence on the part of plaintiff's agent, combining and concurring with the negligence of the defendant, contributed to the injury of plaintiff's property as a direct and proximate cause thereof, and without which it would not have been sustained your verdict must be for the defendant.

IV. If you should find from the testimony in this case that plaintiff's agent, the driver of the truck, saw defendant's train fast approaching and attempted to cross immediately in front of same, when so to attempt to cross would be an obviously dangerous, reckless, or wanton act to a person of ordinary prudence and care, I charge you as a matter of law that, even though the acts of a defendant in failing to give the signals required by statute or otherwise were willful, wanton, or reckless, such acts on the part of plaintiff's agent would constitute gross contributory negligence, recklessness, and wantonness, and if such gross contributory negligence, recklessness, and wantonness on the part of the plaintiff's agent, combining and concurring with the willfulness, wantonness, and recklessness of defendant as a proximate cause of the injury to plaintiff's property, and without which it would not have occurred, your verdict must be for defendant.

V. Contributory negligence on the part of a plaintiff is a defense to negligence on the part of a defendant, and contributory willfulness, wantonness, or recklessness on the part of a plaintiff is a defense to willfulness, wantonness or recklessness on the part of a defendant.

VI. The object of the statute in requiring signals to be given by a train approaching a crossing is to warn those about to use the crossing of the approach of the train, but if one sees or hears a train approaching, without the signals having been given, and attempts to pass over immediately in front of such train, then it cannot be said that the failure to give the required signals was the proximate cause of any injury that may have been sustained by collision with the train at such crossing.

VII. I charge you that the fact that a train is being run rapidly is no evidence of negligence in the absence of proof of other circumstances.

VIII. As said by our Supreme Court, 'The law imposes upon every capable person the duty of observing due care for his own safety, when about to cross a railroad track, which necessarily involves the exercise of his senses;' and I charge you that the exercise of a party's senses includes both the doing of an act and the failure to do an act; that is, negligence may consist either of acts of omission or acts of commission.

IX. If you find from the testimony that defendant's track, at the crossing upon which it is alleged plaintiff's property was damaged, was perfectly straight and that a train approaching from either direction could be easily seen and heard by the exercise of the slightest degree of care, such as a mere turning of the head and looking, or merely pausing and listening, and it would be obviously dangerous, reckless, and wanton to a person of ordinary prudence and care for a person to attempt to cross the railroad track without exercising such precautions, such failure on the part of one so attempting to cross would constitute gross negligence, recklessness, and wantonness and I charge you, if you find from the testimony that plaintiff's agent so attempted to cross defendant's track, and plaintiff's property, in his custody, was damaged thereby, that plaintiff's agent was guilty of gross contributory negligence, recklessness, and wantonness, and if such gross contributory negligence, recklessness, and wantonness on the part of plaintiff's agent, combining and concurring with the negligence, recklessness, willfulness and wantonness of defendant, produced the injury to plaintiff's property as a direct and proximate cause thereof, and without which the injury would not have been sustained, your verdict must be for the defendant.

X. One failing to observe the slightest care for his own safety and that of property in his custody, in looking or listening for approaching trains when driving upon a crossing, is guilty of gross negligence.

XI. Even if you find from the evidence that the defendant was negligent or willful in the particular alleged in the complaint, plaintiff must show by

the preponderance or the greater weight of the evidence that such negligence or willfulness was the direct and proximate cause of the alleged injuries complained of by plaintiff and without which they would not have occurred; and if it has not been so proven by the preponderance or greater weight of the evidence, then your verdict must be for the defendant.

XII. If you find from the evidence that the plaintiff failed to exercise due care for the safety of himself and his property, and if such failure amounted to gross negligence and contributed to his alleged injuries as a proximate cause thereof and without which they would not have occurred, then the plaintiff cannot recover, even though you find that the defendant was negligent, but not willful.

XIII. Contributory negligence is not a defense to willfulness, but if you find from the evidence that plaintiff's agent consciously failed to exercise due care for the safety of himself and the property in his charge, or that his negligence was so gross as to amount to recklessness or willfulness, and that the same contributed as a proximate cause of the accident and without which it would not have occurred, then your verdict must be for the defendant, even if you find from the evidence that the defendant was willful, reckless, or wanton.

XIV. I charge you that, where the issues in any case are negligence on the part of the defendant and gross contributory negligence on the part of the plaintiff, you cannot compare the negligence of the two parties and then determine your verdict according to such comparison; but, even though negligence be proven on the part of the defendant, if the slightest gross contributory negligence be proven on the part of the plaintiff which operated as a proximate cause of the injury and without which it would not have occurred, such gross contributory negligence will defeat a recovery.

XV. I charge you that, where the issues in any case are willfulness on the part of the defendant and contributory willfulness on the part of the plaintiff, you cannot compare the willfulness of the two parties and then determine your verdict according to such comparison, but even though willfulness be proven on the part of the defendant, if the slightest contributory willfulness be proven on the part of the plaintiff which operated as a proximate cause of the injury and without which it would not have occurred, such contributory willfulness will defeat a recovery.

XVI. Negligence is the failure to exercise that degree of care which a person of ordinary reason and prudence would have exercised in the same circumstances; and if you find from the evidence that the defendant used such care upon the occasion alleged in the complaint, and was not willful or reckless, then your verdict must be for the defendant.

XVII. It does not follow that one party must respond in damages to another merely because an injury has been sustained, for the reason that no action will lie for injuries attributable to what is termed inevitable or unavoidable accidents; and in such cases the law does not exact a compensation and the loss or injury will be allowed to remain where it has fallen.

XVIII. Any unforeseen event, misfortune, loss, act, or omission resulting solely from the operations of human agency which is not caused by negligence or misconduct may be defined as an unavoidable accident. The correct standard to be applied to occurrences of this character is the conduct of a person of ordinary

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