Richardson v. Northwestern R. Co. of South Carolina

• Decision Date: 08 May 1923
• Docket Number: 11223.
• Citation: 117 S.E. 510,124 S.C. 314
• Parties: RICHARDSON ET AL. v. NORTHWESTERN R. CO. OF SOUTH CAROLINA.
• Court: South Carolina Supreme Court

117 S.E. 510

124 S.C. 314

RICHARDSON ET AL. v. NORTHWESTERN R. CO. OF SOUTH CAROLINA.

No. 11223.

Supreme Court of South Carolina

May 8, 1923

Appeal from Common Pleas Circuit Court of Sumter County; John S Wilson, Judge.

Action by Victoria M. Richardson and another against the Northwestern Railroad Company of South Carolina. Judgment for defendant, and plaintiffs appeal. Reversed, and remanded for a new trial.

The complaint of the plaintiffs, omitting formal allegations, was as follows:

The plaintiffs above named, complaining of the defendant above named, allege:

III. That on or about the 12th day of November, 1919, about 4 o'clock in the afternoon, the plaintiff Victoria M Richardson was riding in and driving a certain Oakland automobile, of the value of $1,250, belonging to her, over one of the public roads in the county of Clarendon, S. C. and approached a certain crossing where the tracks of the defendant company cross the said road; that as plaintiff approached said crossing she looked to see whether or not any train was approaching, and, failing to see or hear any such train, she continued her course and started over said crossing, but that just as she ran said car onto the track the train of the defendant company ran into said car completely demolished the same, throwing the said plaintiff therefrom and dragging her for approximately 150 feet down the track, breaking her right arm, bruising, straining, and injuring her, causing her excruciating pain and suffering and considerable expense for medical treatment and medicines, and loss of time, and great inconvenience.

IV. That at the time and place in question the defendant company had negligently and recklessly left one or more box cars on the siding close to the public highway in question, which box cars, to a great extent, obstructed the view so that one on said highway could not see a clear view down the railroad track, thus contributing to plaintiff's injury and damage as a proximate cause thereof.

V. That at the time and place in question it was the duty of the agents and servants of the defendant company in charge of said train to blow a whistle thereon and sound a bell, in order to give the plaintiff Victoria M. Richardson, and the traveling public generally, notice of the approach of said train, as required by the statute of the state of South Carolina, but on the occasion in question the agents and servants in charge of said train negligently, recklessly, and wantonly failed and refused to give such signals so required by statute, whereby said plaintiff was not warned of the approach of said train, thus contributing to plaintiff's injury and damage as a proximate cause thereof.

VI. That on the occasion in question it was the duty of the agents and servants of the defendant company in charge of said train to keep a proper lookout, and to that end either to run said train in a forward direction, or if same should be backed, to station some one at the rear of said train for the purpose of keeping such a lookout, but that on said occasion the defendant company, its agents and servants, negligently, recklessly, and wantonly backed said train over said crossing and into the plaintiff Victoria M. Richardson, as aforesaid, without maintaining the proper lookout and without warning of its approach, thus contributing to plaintiff's injury and damage as the proximate cause thereof.

"VII. That the schedule time or usual time of the passage of the trains of defendant company was well known to said plaintiff, and that, at the time and place in question, according to the schedule and practice of the defendant company, its trains should have been going from St. Paul towards Summerton, said points being stations along the line of defendant company in the county and state aforesaid, but that on the occasion in question the said train of the defendant company, instead of going from St. Paul towards Summerton, was backing from Summerton towards St. Paul, and coming thus from an unexpected direction, without notice or warning of its approach, ran into and upon said plaintiff and her car, injuring and damaging her as aforesaid.

VIII. That the acts and omissions of the defendant company, its agents, and servants, as herein set forth, were negligent, willful, and wanton, and jointly and concurrently caused the plaintiff's injury as aforesaid, such reckless conduct being further shown by the fact that defendant company did not maintain at said crossing any sign post or sign of railroad crossing as required by law, and that all of such acts and omissions caused the plaintiff Victoria M. Richardson's damage in the sum of $25,000.

The original answer of the defendant was as follows:

I. That it admits the allegations contained in the first and second paragraphs of the complaint, and admits that at about the time and at the place stated in the third paragraph of the complaint, the plaintiff Victoria M. Richardson suffered some injury to her person, and that the automobile which she was driving was also damaged and injured, but it denies that it has any knowledge or information sufficient to form a belief as to the nature and extent of such injuries. It denies each and every other allegation contained in the complaint.

II. And for a further defense: That the plaintiff Victoria M. Richardson, in approaching the railroad track, should have exercised ordinary prudence and caution, and this she failed to do. The train in question was in plain and open view of the said plaintiff and had she looked or listened, she would have seen the train and could have avoided the injury and that her failure to take such precautions was the sole proximate cause of whatever injury and damage she may have suffered.

III. And for a further defense: That at the place at which the injury is alleged to have occurred to the plaintiff Victoria M. Richardson, and at the time mentioned in the complaint, there was a clear, open view of the railroad track of the defendant from the road used by her, and the train of cars which was alleged to have caused the injury was in plain and open view of the said plaintiff for a long distance before she reached the railroad track. That if she had looked, she would have seen the approach of the train, and had she listened she could have heard it approaching. That she approached the railroad track without looking in the direction from which the train was approaching, and she failed to listen and failed to stop, and failed to take any precaution whatsoever against the approaching train, but without stopping, looking or listening, she so drove the automobile that it went upon the track and was struck by the train; and that, if she had stopped, looked, or listened, she would have seen and heard the train, and the injury complained of would not have happened, and the injury and damage alleged to have been suffered by her was due to her failure to observe the precautions as aforesaid and contributed to bringing about the injury and damage as a proximate cause of such injury and damage.

The amendment to the answer proposed and allowed at the trial was as follows:

And that the plaintiff did not heed the signals and warnings given her on the occasion in question, and attempted to cross defendant's railroad track without the exercise of due or any care upon her part for her own safety, and with knowledge of the presence of the approaching train, or with opportunity or means of acquiring knowledge of its approach, and that such conduct upon the part of the plaintiff was negligent, willful, wanton, and reckless, and that any injury or damage that the plaintiff may have sustained upon said occasion was brought about and was due to her negligence and wantonness and willfulness and recklessness in going upon or attempting to cross defendant's railroad track as herein alleged, and that such conduct was in violation of law and that any said alleged injury was due to and arose by her own negligence, willfulness, wantonness, and recklessness in so going upon or attempting to go upon the defendant's railroad track without the slightest care, combining and concurring with the supposed acts on the part of the defendant as characterized in the complaint, contributed to the accident as a proximate cause thereof, and without which the same would not have occurred.

The defendant moved for a direction of verdict, which was refused. The grounds of this motion were as follows:

"May it please the court, the defendant moves to direct a verdict in his behalf on both causes of action. Because the testimony does not permit of any other inference from the point of negligence or willfulness; the inference being that whatever injury the plaintiff sustained, if any, either in her property or person, was brought about and occasioned by her own willfulness, her own gross negligence, her failure to use the slightest care in going upon the railroad track upon the time in question. We have it reduced to writing, and we will read that in connection with what I have said (reading): 'The plaintiffs having alleged that the view of the railroad was partially obstructed by a box car, which, it is shown, is only about 40 feet in length, and it appearing that there was a distance of 450 feet along the public highway on which Mrs. Richardson was traveling from which the railroad track could have been seen, except for the space obstructed by the car, and it further appearing that the railroad track was in clear view of the plaintiff Mrs. Richardson, traveling the highway for a distance of 375 feet, and it appearing further, from her own testimony, that she did not

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