Peagler v. Atlantic Coast Line R. Co., 17503

• Decision Date: 12 February 1959
• Docket Number: No. 17503,17503
• Citation: 234 S.C. 140,84 A.L.R.2d 794,107 S.E.2d 15
• Court: South Carolina Supreme Court
• Parties: , 84 A.L.R.2d 794 Hester PEAGLER, Respondent, v. ATLANTIC COAST LINE RAILROAD COMPANY, and Kenneth Norton, Jr. and Murray M. Norris, Appellants.

Page 15

107 S.E.2d 15

234 S.C. 140, 84 A.L.R.2d 794

Hester PEAGLER, Respondent, v. ATLANTIC COAST LINE RAILROAD COMPANY, and Kenneth Norton Jr. and Murray M. Norris, Appellants.

No. 17503.

Supreme Court of South Carolina.

Feb. 12, 1959.

Hagood, Rivers & Young, Charleston, for appellants.

Meyer, Goldberg, Hollings, Lempesis & Uricchio, Charleston, for respondent.

MOSS, Justice.

The respondent, Hester Peagler, brought this action against the Atlantic Coast Line Railroad Company, and Kenneth Norton, Jr. and Murray M. Norris, the conductor and engineer respectively, appellants, for personal injuries received at about 6:00 o'clock p. m. on November 19, 1955, when a Chevrolet automobile driven by him collided with the side of an empty black pulpwood flatcar that was standing on and blocking a railroad crossing over O'Hear Avenue in North Charleston, South Carolina.

The respondent alleged that his personal injuries were proximately caused and occasioned by the negligence, carelessness, recklessness and willfulness on the part of the appellants by stopping a low black empty pulpwood flatcar, in the darkness of night, across a twenty foot wide heavily traveled black surfaced public highway, thereby creating a deceptive condition and completely blocking the highway, and failing to provide warnings of the presence of said flatcar across the highway by notice, sign, signal, light, flagman or watchman. It was further alleged that in placing the empty flatcar across the said highway, by reason of its height, the impression was created that the said crossing was open and not blocked, and after creating such an unusual and extra hazardous situation or condition, appellants failed to use such precautionary measures as were necessary and proper in the circumstances to prevent injury to the traveling public.

The appellants denied the material allegations of the complaint and further set up a plea of contributory negligence, recklessness and willfulness on the part of the respondent, and alleged that the respondent, who was familiar with the crossing, ran into the side of the pulpwood car and failed to heed the highway railroad crossing signs, and railroad cross buck sign, and the speed limit on the highway, without looking or listening, or taking any precautions for his own safety, and alleged that he drove his automobile at a high, dangerous, reckless and unlawful speed into the side of the pulpwood car.

The case was tried before the Honorable T. B. Greneker, Presiding Judge, and a jury, at the March 1958 term of the Court of Common Pleas for Charleston County, South Carolina. Appellants' timely motions for nonsuit and direction of a verdict were overruled, and the case was submitted to the jury, who found for the respondent $56,000 actual damages. Thereafter, the appellants' motion for judgment non obstante veredicto or for a new trial was denied; and the appellants now appeal on numerous exceptions, to which we shall later refer.

The first group of exceptions raises two questions: (1) Was the negligence of the respondent the sole proximate cause of his injuries? and (2) Was the respondent guilty of contributory negligence that will bar him from recovery? We consider these two questions together. These questions were raised in the lower Court by timely motions for nonsuit, directed verdict, judgment non obstante veredicto and for a new trial.

It is a well established rule of law that in passing upon the appellants' motions below, it is incumbent upon this Court to review the testimony, construing it in the light most favorable to the respondent. Barnett v. Charleston & Western Carolina Ry. Co., 230 S.C. 525, 96 S.E.2d 555, and Brown v. Powell, 198 S.C. 403, 18 S.E.2d 212. It has also been held that if the only reasonable inference to be drawn from all the testimony is that the negligence of the complainant is a direct and proximate cause of his injury and damage, or that the negligence of the complaint contributed as a direct and proximate cause, then it would be the duty of the trial Judge to order a nonsuit or direct a verdict against such plaintiff. Sewell v. Hyder, 229 S.C. 480, 93 S.E.2d 637.

In the case of Field v. Gregory, 230 S.C. 39, 94 S.E.2d 15, we quoted with approval from the case of Harrison v. Atlantic Coast Line R. Co., 196 S.C. 259, 13 S.E.2d 137, 141, the following:

'It is firmly established in this jurisdiction that if the inferences properly deducible from the evidence are doubtful, or if they tend to show both parties guilty of negligence or wilfulness, and there may be a fair difference of opinion as to whose act produced the injury complained of as a direct and proximate cause, then the question must be submitted to the jury. Ford v. Atlantic Coast Line Railroad Co., 169 S.C. 41, 168 S.E. 143.'

The evidence shows that O'Hear Avenue runs North and South. The railroad tracks run East and West. The pavement on O'Hear Avenue was twenty feet wide and the road was straight and level for a distance of about 1,200 feet south of the crossing. The road was straight and level north of the crossing for a considerable distance. There are no railroad or street lights directly at the crossing. There was a street light approximately 100 feet south of the railroad track and on the west side of O'Hear Avenue. There is testimony that this light does not have any effect on the crossing. The testimony shows that the crossing had no flash or blinker lights to warn the traveling public, and there were no flares or fusees put out to warn the traveling public of the blocked crossing, nor was any flagman present to warn persons approaching the crossing of the presence of the train standing motionless on the track. There was nothing at the crossing to warn the public of the presence of the empty pulpwood car, except the car itself. The train, of which the pulpwood car was a part, consisted of an engine and fifty-two cars, which was being operated over a service or spur track across O'Hear Avenue in a westerly direction to deliver and pick up freight cars. The train was stopped when it approached the main line of the Seaboard Railroad. The empty pulpwood car, the twenty-sixth car of the train, was stopped entirely across O'Hear Avenue, with each end of the flatcar clear of the paved highway. The stationary, empty, black pulpwood flatcar was 42 feet 8 inches long, and as is heretofore stated, was parked entirely across O'Hear Avenue, a twenty foot wide paved black top road, which said road was a well traveled public highway, leading from the Charleston Navy Yard section towards North Charleston. The pictures and diagrams of the pulpwood car show that the distance from the floor of the car to the ground is 48 3/16 inches and the distance from the floor of the car on the side thereof to the bottom of the sill at the center of the car is 36 5/8 inches. The car is made of 3/8 inch boiler steel, with a steel superstructure. The center sill is of solid steel and extends down from the floor of the car approximately three feet. The testimony shows that no one could see through this solid steel that is under the center of the car.

It is clear from the plat in evidence that O'Hear Avenue, south of the railroad crossing, is straight and level for a distance of approximately 1,200 feet, and for this same approximate distance beyond and north of the railroad crossing. There is testimony that shows that the respondent approached the railroad crossing in question from the south and that he was operating his automobile at a speed of 30 to 35 miles per hour. He saw the speed limit highway sign while approaching the crossing. The head lights on his car were working and were on dim on account of an approaching car from the north. The respondent was driving on the right side of the highway in the direction in which he was traveling and he could see evidently over the parked flatcar, the headlights of other cars which were beyond the crossing and approaching the same from the north. The respondent testified that his brakes were perfect and his lights were good, and that as he approached the railroad crossing, he saw a car approaching from the north towards him forty or fifty feet away, and that he was ten or fifteen feet from the crossing when he saw a black line, apparently an outline of the bed of the flatcar. He testified he saw a highway speed sign limiting travel to 35 miles per hour. Immediately after the respondent saw the black line above referred to he crashed into the flatcar and was unconscious until he 'woke up in the hospital.' There was also testimony that as the respondent drove his automobile towards the crossing, that a car approaching from the opposite direction blinked its lights and that the respondent remarked 'What's he keep blinking his lights for, I got mine dim now.'

There was testimony given in behalf of the respondent by witnesses who were driving automobiles from the north towards the crossing in question. One of these witnesses testified that as he approached the railroad crossing he saw the train slowly moving across the highway towards the west, and that he stopped a couple of minutes before the train did. He testified that there were no lights at the crossing, that he saw the respondent's car coming from the south and when the respondent approached the crossing he blinked his lights as a warning because the train was then standing across the road in the darkness, and had been for two or three minutes. This witness testified that he blinked his lights in an effort to warn the respondent of the presence of the train, because he observed that the respondent kept going after he reached the point where he should have been putting on brakes and stopping. Another witness testified that he was traveling south on O'Hear Avenue and that he was meeting another car coming from the south, that he dimmed his lights and about that time he saw the lights of the respondent's car go out and heard a noise. He...