Padgett v. Southern Ry. Co.

• Decision Date: 15 March 1950
• Docket Number: 16330.
• Parties: PADGETT v. SOUTHERN RY. CO. et al.
• Court: South Carolina Supreme Court

58 S.E.2d 895

216 S.C. 487

PADGETT v. SOUTHERN RY. CO. et al.

No. 16330.

Supreme Court of South Carolina.

March 15, 1950

Moss & Moss, Orangeburg, Frank G. Tompkins, Jr. Columbia, for appellant.

Hydrick & Hydrick, Orangeburg, for respondent.

STUKES, Justice.

Respondent recovered verdict and judgment against appellant for $2,500 actual damages for the alleged wrongful death of her intestate who was her seventeen year old son. He was one of twin brothers who were riding with another youth in the latter's Chevrolet coupe of 1930 vintage which was struck by appellant's railroad train and demolished at a grade crossing in Orangeburg County. All were instantly killed and one or more of the bodies horribly mangled. Wreckage of the automobile was carried under the railroad engine for a distance of half or three-quarters of a mile. The accident happened in the late afternoon of Sept. 4, 1948, when light rain fell. No eyewitness testified.

The earth road traveled by the decedents left a paved highway and ran through a field to and across the railroad track, through the yard of a colored tenant farmer and thence to an Edisto River landing. Beyond the dwelling, and to the river, it was apparently used only by fishermen. Returning from the river swamp the automobile was stopped at the Negro's house and the driver talked to his young daughter, inquiring the whereabouts of her father who was away. It was raining and after the conversation she returned to the house as the car left, bound for the nearby railroad crossing. She testified to these facts but she did not hear the train or collision although the crossing was only a few hundred feet distant; she explained that the noise of the other children in the house probably prevented the sound from reaching her. Photographs in evidence show maintenance of the crossing with crushed rock between the rails and on the approaches. The roadbed was elevated about four feet above the surroundings. The pictures further disclose no obstructions to the view of the crossing and approaching trains and, by the same token, some of the train crew should have seen the automobile on its way to its doom when they might have taken preventive action.

The suit was brought against the railroad company and its engineer who was operating the train. There were the usual allegations of negligence in such cases with departure in the form of statement of them. This portion of the complaint is here reproduced:

'7. That without limiting the generality of the foregoing allegations of negligence, wilfullness and wantonness, plaintiff alleges on information and belief, that her intestate's death was proximately caused by the defendants in the following particulars:

'(a) In failing to maintain the said crossing in a safe and usable condition in that the iron rails were allowed to project above the level of the ground as hereinabove referred to;

'(b) In failing to place signs on the road immediately adjacent to the crossing with the words 'RAILROAD CROSSING' printed thereon in large letters as required by the statute of the State.

'The delicts alleged in (a) and (b) are delicts directly chargeable to the corporate defendant, Southern Railway Company;

'(c) In failing to sound the bell or blow the whistle as the train approached the said crossing.

'(d) In failing to keep the proper lookout for persons using the same;

'(e) * * *

'(f) * * *'.

The answer denied the material allegations of the complaint and contained the affirmative defense of contributory negligence, gross negligence, etc., of the deceased and of the person having charge of the decedent. See section 8377 of the Code of 1942.

For lack of supporting evidence the trial judge ruled out all of the alleged acts of negligence except that styled (d) in the complaint, that is, the alleged failure on the part of the defendants to keep a proper lookout. Verdict was returned only against the railroad company and thus the personal defendant, the engineer, was acquitted of negligence, etc.

A major position of appellant is that the effect of the verdict by its release of the engineer, was also to release appellant under the doctrine of Carter v. Atlantic Coast Line R. Co., 194 S.C. 494, 10 S.E.2d 17, and kindred cases. It is strongly argued that the meaning of the allegations of the complaint copied above, was to charge the company with negligence through agents other than the engineer only in specifications (a) and (b), and that the single specification submitted to the jury, that concerning lookout, referred to the alleged negligence, etc., of the defendant engineer, so that the acquittal by the jury of the latter necessarily acquitted appellant. The argument is answered by respondent by the contention that specifications (a) and (b) referred to acts of agents of the company other than the members of the crew in charge of the operation of the train and that (d) refers to the failure of all of the crew to keep a proper lookout. This is justified by a liberal construction of the complaint, which is required, and appellant's position in this respect is therefore untenable, so that ground of its motion for judgment non obstante veredicto was properly overruled. Carter v. Southern Ry., 93 S.C. 329, 75 S.E. 952. Rhodes v. Southern Ry. Co., 139 S.C. 139, 137 S.E. 434.

In Carter v. Southern Ry., supra, 93 S.C. 329, 342, 75 S.E. 952, 956, the Court said: 'The testimony was not clear as to what the engineer could see on the left of the center of the track. The jury may have thought that the engineer's view was obstructed by the boiler, and that the fireman [the agent of the defendant company], who was on the left side of the engine, was at fault in not notifying him of the danger in time.' In his dissent upon another point of the case, Mr. Justice Woods said 93 S.C. at p. 350, 75 S.E. at page 959: 'The position that a verdict against the railroad company, and not against the engineman, is contradictory is unsound, and is disposed of by the case of Ruddell v. Seaboard Air Line Ry., 75 S.C. 290, 55 S.E. 528, and the cases there cited.'

The absence of evidence of failure of the train to give the statutory crossing signals converted the action, as held by the trial judge, to one solely at common law so the provision of sec. 8377 of the Code to the effect that gross negligence of the driver of the automobile is imputable to the guest passenger (the intestate) is inapplicable. The contrary point of the appeal is, therefore, without merit. Funderburk v. Powell, 181 S.C. 412, 187 S.E. 742. Smith v. Southern Railway, 193 S.C. 44, 7 S.E.2d 630. Crapse v. Southern Railway, 201 S.C. 176, 21 S.E.2d 737. The gross negligence, recklessness, etc., if any, of the driver here could not be imputed to plaintiff's intestate whom the evidence shows was a guest.

The foregoing disposes of two of appellant's questions, adversely to it. The third assigns error in the refusal of motions for directed verdict and for judgment non obstante upon the ground that the only reasonable inference from the evidence is that the intestate was guilty of contributory negligence, wilfullness, etc. It is untenable under the meagre testimony. His conduct and that of the automobile driver are not explained in the evidence and we may only conjecture as to their acts immediately proceeding the collision. There may have been mechanical failure of the automobile and it may have stalled upon the railroad track. Observant trainment may have given the answers had they testified. This feature will be elaborated later. Contributory negligence is an affirmative defense which must be proved by the pleader.

The most difficult question is left undecided by what has been said. It arises from the contention that verdict for appellant should have been directed or set aside upon the motion for judgment non obstante because of the lack of proof of facts from which it could have been reasonably found that the alleged negligence in failure to keep a proper lookout was the proximate cause of the collision. Fuller statement of the facts in evidence is necessary.

A witness for respondent was a deputy sheriff who answered a call to investigate the wreck. He arrived on the scene shortly after six o'clock and found the train stopped about half or three-quarters of a mile beyond the crossing, the chassis of the automobile beneath and effort was being made to extricate it by moving the train alternately forward and backward. The witness talked to the engineer of the train who said that he did not see the collision and his attention was first attracted by the noise under the train, and he then applied the brakes. The witness said that the railroad track was straight for miles in both directions from the crossing. The engineer told him that he thought no one was in the automobile when it was struck but the witness located a part of the body of one of the victims under the train and other parts strewn along the track. One body was about 120 feet from the crossing and that of respondent's intestate 240 feet. He smelled the odor of liquor on two of the bodies which he did not identify. He found the remains of an outboard motor in the automobile wreckage. The witness was of the opinion that there was nothing to prevent the engineer and fireman of the train from seeing the automobile on or approaching the crossing.

Another plaintiff's witness saw the victims in the city of Orangeburg about 4:30 or 5:00 o'clock in the afternoon as they left to go to the river and declined an invitation to accompany them because he was working. He knew they did a lot of fishing on the river, several miles away. Neither respondent's intestate nor his brother owned the automobile. The witness supposed it was owned by their host who drove it.

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