Pryor v. Atlanta-Charlotte Airline Ry. Co.

• Decision Date: 14 February 1936
• Docket Number: 14231.
• Citation: 184 S.E. 137,179 S.C. 423
• Parties: PRYOR v. ATLANTA-CHARLOTTE AIRLINE RY. CO. et al.
• Court: South Carolina Supreme Court

184 S.E. 137

179 S.C. 423

PRYOR v. ATLANTA-CHARLOTTE AIRLINE RY. CO. et al.

No. 14231.

Supreme Court of South Carolina

February 14, 1936

Appeal from Common Pleas Circuit Court of Greenville County; Wm. H Grimball, Judge.

Action by Floyd T. Pryor, administrator of the estate of Laura Lester Pryor, deceased, against the Atlanta-Charlotte Airline Railway Company and another. From a judgment of nonsuit plaintiff appeals.

Reversed and new trial granted.

Leppard & Leppard, of Chesterfield, and W. E. Bowen, of Greenville for appellant.

Blythe & Bonham, of Greenville, for respondents.

A. L GASTON, Acting Associate Justice.

An order of nonsuit was granted, at the conclusion of plaintiff's testimony, on motion of the defendants by the presiding judge on circuit. The appeal is taken from the judgment entered thereon. The plaintiff's intestate was killed by a fast northbound passenger train on the main line track in the yard of the defendants within the limits of the town of West Greenville, at a point between the underpass in West Greenville and an overhead bridge near Poinsett Mill. Many trains pass this point daily. The place where the tragedy occurred is situated within a very populous area of the industrial community, where the people, including women and children, constantly walk along a pathway, on their way to work in the numerous nearby cotton mills, known as Woodside, Poinsett, Monaghan, and Brandon Mills. On the east side of the yard is located West Greenville and some houses are close to the track on that side. Along the east side of the northbound main line, which is the track on the extreme east, is a well-defined path. A number of other paths lead into this one, but there are no road crossings or paths leading across the tracks at this point.

The deceased was walking in company with three others, two abreast, next to the track and within 2 or 3 inches of the end of the cross-ties, along this path or walkway when she was struck from the rear by the pilot beam of the engine of train No. 40. This passenger train is one of the Southern Railway Company's fast trains running from New Orleans to Washington, making a fast schedule and was running between 50 and 60 miles per hour. When the deceased was struck, she was walking by the side of her sister, Lillie Pryor, and had her hand on her sister's shoulder. Those two were walking abreast along the path by the side of the railroad for a distance of 127 feet. Helen Pryor, the deceased, was next to the track. Immediately in front of them were Flonnie Lanford and Frances Sizemore. The testimony shows that a frieght train on another track was meeting this group of four and that the engine and three or four box cars had passed them at the time Helen Pryor was struck. The appellant maintains that when people walk two and two that one walks up next to the end of the cross-ties upon the ballast and the other in the path; and that there is plenty of room to walk in this manner; that as a usual thing they could walk probably one upon the edge of the ballast by the end of the ties and the other one down on the dirt; and if it is muddy they walk as a general thing along up by the end of the ties on the ballast to stay out of the mud. The appellants further contend that this path had been used by the public generally for many years and the defendants had interposed no objection to its use by the public. Also, that the defendants had built four board walkways upon the bridge across the river at the southern depot beyond this point, which had been used by the public without protest. Also, that although signs were placed along the railroad reading, "Warning, do not walk on track or bridges," by implication this was an invitation to use the path; and that the use of the tracks and bridges for at least eighteen years from the underpass south in West Greenville to the southern depot was permitted under circumstances which would leave no doubt that the defendants knew of such use and thereby acquiesced in the disregard by the public of the warning signs.

It is further contended by the appellants that by the exercise of even the slightest care on the part of the defendants the death of this young woman would not have occurred; that the engineer could have seen that she was walking within two or three inches of the end of the cross-ties in a position of extreme danger of being struck by the pilot beam of the engine which extended 9 inches out over the end of the ties; and that the engineer must have known that she was unaware of the approach from her rear of his train coasting down grade without making any noise and without giving any signals and that the engineer knew that he would hit her if he failed to give her any warning; and that she walked a distance of 127 feet along the path in a little less than thirty seconds; and that her position could be seen by the fireman as he rounded the curve a distance of 1938 feet away and by the engineer for a distance of 500 or 600 yards. That neither Helen nor any of the others in her party stepped upon the cross-ties; that when they reached the path, they looked in both directions for a train, but none was in sight and the deceased was not guilty of negligence in not looking back oftener than every thirty seconds; and that her position was even more perilous by reason of the freight train pulling up the grade on the southbound main line, blowing its whistle and thereby causing her to be more apt to be unaware of the approach of the passenger train from her rear; and that the engineer on No. 40 was well aware of and could fully appreciate her danger, but made no effort to stop his train, and failed to blow the whistle or sound a bell until about the time she was struck. Appellants further contend that the deceased was not a trespasser, but was a licensee; that she was walking in the path at the end of the cross-ties and that the gravel was worn down and was walked on by people just as they would on the main path; and that the warning sign in regard to the tracks or bridges does not refer to nor include the ballast beyond the end of the cross-ties; and that she was walking in the path, which included the worn part of the ballast, and that she was not on the track when struck and killed; and that it was for the jury to say whether plaintiff's intestate was walking in the path or on the track.

The respondents contend that the deceased was a trespasser; and say that the pilot beam runs across the front of the engine and that blood and brains were spattered on the bolts in the pilot beam about the step which would indicate that the deceased was struck by the step on the front of the engine and her head was thrown back against the pilot beam, and would indicate further that she was walking upon the cross-ties, though the eyewitnesses do not place her in this position. They further contend that the warning signs were a distinct and clear order to people walking along the path to stay off the tracks and bridges. They claim that if she had walked in the path she would not have been hit and in walking upon the track in disregard of the signs she was a trespasser and that there can be no question that the track of a railroad is not merely the rails and the cross-ties, but is that portion of a right of way upon which the train runs, namely, the rails, the cross-ties, and the rock ballast which support them; that the ballast support the ties, and the rails and all form the track upon which the train runs; and the only inference to be drawn from the testimony is that her death resulted from her deliberate disregard of warnings and heedlessness of her own safety; and that after she entered upon the right of way she had the choice of walking in a well-beaten path beside the track where people were accustomed to walk and in which path she could have walked in absolute safety, as shown by the fact that her three companions were not injured; and that she chose the dangerous method of walking on the rock ballast at the end of the ties in disregard of the warning signs posted by the defendants; and that she was guilty of not only contributory negligence, but contributory willfulness.

The record shows that the witness R. H. Mathis was asked on cross-examination in regard to a written statement made by him to W. E. Kitts on the day the accident occurred, reading as follows: "Q. I was on East side of railroad, and about 20 or 25 feet from the track, when Mrs. Pryor was killed by No. 40 this evening. I saw four women walking along side by side when the passenger train was about 200 feet behind them-the one that was killed over on the inside of the track, between the rails, smoking a cigarette, I think, with her hand up on the shoulder of another woman walking on the end of the ties; and there was another woman walking in the ballast at the end of the ties, and another walking out in little path. Now, that is where you put your signature at the time, Mr. Mathis." The witness denied the statement.

The record further shows that the following colloquy occurred during the trial when one of the jurors inquired: "I would like for his Honor to explain what is termed the track; is the roadbed, the whole roadbed considered as part of the track, or is the rails and ties?" To which Mr. Bonham replied, "That is a question of law and we will try to furnish the Court with some information on that before the time comes to give you the law. I would not like to have that question sprung on me, your Honor."

The order of nonsuit holds that there is no evidence in this case in relation to the crossing statute; but that regardless of whether the plaintiff's intestate is a trespasser or a licensee, that her conduct "in walking close beside a railroad track, which our decisions have...