Rock v. Atlantic Coast Line R. Co.

Citation222 S.C. 362,72 S.E.2d 900
Decision Date30 October 1952
Docket NumberNo. 16678,16678
CourtUnited States State Supreme Court of South Carolina
PartiesROCK v. ATLANTIC COAST LINE R. CO.

Douglas McKay, Columbia, Reynolds & Reynolds, Sumter, for appellant.

Marion Moise, John D. Lee, Jr., Sumter, for respondent.

FISHBURNE, Justice.

The accident which gave rise to this action occurred about seven o'clock at night on Christmas Eve, December 24, 1949, at the intersection of East Calhoun Street in the City of Sumter with a track of the defendant Railroad Company. The automobile in which plaintiff was riding as a passenger collided with a Diesel yard engine that was being backed across the street. The plaintiff suffered personal injuries, and instituted this action for damages in the sum of $3,000.

It is alleged in the complaint that the injuries sustained by the plaintiff were caused by the negligence, recklessness and wilfulness of the Railroad Company in failing to give the statutory signals as required by Section 8377 of the 1942 Code, in failing to keep a proper lookout, in not providing adequate mechanical signals at the crossing, in omitting to provide sufficient lights or other signals thereon to warn the traveling public of the approach of the engine and the danger of the crossing, in failing to provide a watchman at said crossing, and in failing to stop its enging in time to permit the automobile occupied by the plaintiff to proceed across the crossing in order to avoid the collision. These allegations were denied by the defendant, who interposed a defense of gross contributory negligence and wilfulness of the driver of the automobile, which should be imputed to the plaintiff, who was also guilty of gross contributory negligence upon the theory of joint enterprise.

Upon trial, the jury rendered a verdict for the full amount prayed for in the complaint. After the verdict was published, the defendant moved for a judgment non obstante veredicto, or, failing in that, for a new trial upon various grounds. This motion was refused, and the appeal followed.

We first consider whether the trial court erred in refusing to direct a verdict or to order judgment non obstante veredicto for the appellant on the ground that the plaintiff's injury was caused not only by the contributory gross negligence of the driver of the automobile in which the plaintiff was riding, as a proximate cause, but that her injury was occasioned by her own contributory gross negligence as a proximate cause thereof.

The plaintiff, Carrie Rock, with her two sons, Harmon Rock and Abraham Rock, and her daughter-in-law, Ella Rock, left their home on the East side of the City of Sumter about 6:30 o'clock p.m. to go Christmas shopping, at which time it was dark. They were all riding in a Chevrolet automobile, the joint property of Harmon Rock and his father, Emanuel Rock, the husband of the plaintiff. Harmon Rock was driving the car; his wife, Ella Rock, was on the front seat to his right; the plaintiff, Carrie Rock, was riding on the back seat immediately behind the driver, with her son, Abraham Rock, sitting beside her. They proceeded west on Calhoun Street, where the railroad tracks in question are located, and it is admitted that they were all familiar with the railroad crossing in that vicinity.

There are three tracks of the defendant which cross East Calhoun Street on grade; these lay ahead of the Chevrolet car on the route they were following. The first track is the main line running from Sumter to Darlington; the second is a sidetrack adjoining the main line; and 40 or 50 feet west there is a curving track which connects the tracks of the defendant with those of the Seaboard Air Line Railway. The defendant's Diesel switch engine was slowly backing in a northerly direction on this connecting line when it was struck by the automobile. This connecting track crosses East Calhoun Street diagonally.

There are a number of permanent obstructions on both sides along the course followed by the plaintiff and her family as they proceeded west on East Calhoun Street. Calhoun Street is paved 40 feet in width between curb lines; it is a state highway and is heavily traveled. On the sough side of the street driving from east to west, there is a large building (Early & Daniel Company), the average distance of which from the sidewalk is 32 feet, and about 30 feet from the main line track. Between the sidetrack and the curved connecting track toward the west, there are two other buildings on the south: one about 90 feet and the other about 98 feet from the sidewalk. On the north side of the street approaching the connecting track from east to west there is first a Negro church known as Bethel; then several dwellings at various distances from the main line; the one closest to the main line being about 11 feet from the street and about 100 feet from the main line track.

On the night in question, the defendant's train crew was engaged in a shifting movement along its tracks. Just prior to the collision the engine, backing with two box cars attached to its front, first proceeded north along the main line emerging from behind the Early & Daniel Company building, and crossed East Calhoun Street. The movement proceeded a sufficient distance (about 150 or 200 feet) to clear the switch of the connecting track with the Seaboard north of the crossing. The engine, pushing the box cars ahead of it, then proceeded southward across Calhoun Street on the connecting track, and having cleared the street by about 5 or 6 feet, came to a stop. The two box cars were then uncoupled, and the engine, moving at a very slow rate of speed (estimated at about 2 miles per hour), reversed its direction and again backed north into and across East Calhoun Street, directly in front of the car in which the respondent was riding. The collision followed, with the automobile striking the engine at the rear trucks under the fireman's seat. Following the collision, the engine was brought to a stop within 5 or 6 feet. The Diesel engine was equipped with a headlight on both front and rear, each of the same intensity; and there is no contradiction in the testimony that both were lighted.

There is a sharp dispute in the evidence as to whether or not signals were give by bell and whistle or by either, and as to flagging at the crossing by members of the train crew. The driver of the automobile testified that he approached the railroad crossing at an estimated speed of from 20 to 30 miles per hour, but slackened his speed before reaching the crossing. He stated, as did the plaintiff, that they were looking, but did not see the engine until almost the instant of the collision, when Harmon Rock put on his brakes.

Jessie Nelson, a witness for the plaintiff, testified, as did other witnesses differently placed, that he was walking toward the crossing near Bethel Church, about 300 feet therefrom, and neither heard the engine bell nor the whistle blow, although he was near enough to the crossing to have heard them. Neither did he see a flagman. He also said that he saw the engine and the box cars go south across Calhoun Street and disappear in the darkness (presumably behind the Early & Daniel Company building); and that the car occupied by the plaintiff passed him going toward the crossing while the train was hidden from his sight. That he saw the engine then back north across Calhoun Street just before the collision, when the automobile driver applied his brakes.

The witness Dosia Newberry, testified that at the time the engine crossed the street just prior to the collision, not only was the bell not rung or the whistle blown, but she saw no flagman there. That she started to walk across the crossing, and was almost upon the track when the engine came backing across the street, and that she neither heard nor saw it until it was almost upon her. She also stated, as did the switchman who testified for the defendant, that it was so dark at this crossing she could hardly see.

It is stressed by the defendant that there are two street lights on East Calhoun Street: one to the east 320 feet away from the crossing, near Bethel Church, and the other to the west 245 feet from the crossing. The inference may be drawn from the evidence, however, that these street lights afforded very little if any illumination at the crossing. It must also be borne in mind, as it relates to the alleged negligence or contributory gross negligence of the driver of the automobile and of the plaintiff, that the Diesel engine was only 5 or 6 feet to the south of East Calhoun Street when it slowly commenced its backward movement. Witnesses for the defendant said that it was so slow in its movement backward that it was merely creeping along. It may be inferred, therefore, that one approaching the tracks from the east had very little light, if any, at the crossing, except the headlight on the rear of the Diesel engine which was approaching this crossing diagonally on the curved connecting line.

Evidently this headlight must have thrown its rays far ahead and above the crossing. Then, too, the movement of the engine as it proceeded backward, was so slow that it could well have gone unnoticed by the driver of the Chevrolet automobile in which plaintiff was a passenger. This is particularly true when it is remembered that this engine had headlights fore and aft. The driver of the car and the plaintiff both testified that they did not see this engine, and in our opinion under the circumstances here stated, the question as to their negligence or contributory wilfulness, and that of the defendant, should have been passed upon by the jury.

This being a motion for a directed verdict, it will be assumed, although the testimony is in conflict, that the statutory crossing signals were not given, and that the railroad company was guilty of negligence per se by failing to blow the whistle orring the bell. Also, in recognition of the familiar rule, in considering whether a motion for...

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6 cases
  • Indemnity Ins. Co. of North America v. Odom, 17702
    • United States
    • South Carolina Supreme Court
    • August 23, 1960
    ...requirement of the doctrine of common enterprise. Funderburk v. Powell, 181 S.C. 412, 187 S.E. 742; Rock v. Atlantic Coast Line Railway Company, 222 S.C. 362, 72 S.E.2d 900; Bolt v. Gibson, 225 S.C. 538, 83 S.E.2d 191. The Court below correctly held that the negligence of Rogers could not b......
  • Doremus v. Atlantic Coast Line R. Co.
    • United States
    • South Carolina Supreme Court
    • March 19, 1963
    ...v. Southern Railway, 216 S.C. 487, 58 S.E.2d 895; Limehouse v. Southern Railway Co., 216 S.C. 424, 58 S.E.2d 685; Rock v. A. C. L. Railroad, 222 S.C. 362, 72 S.E.2d 900. Several exceptions on the part of the appellant challenge the validity any effect of the assignment of a 1/100 interest i......
  • Gray v. Barnes
    • United States
    • South Carolina Supreme Court
    • July 21, 1964
    ...thereof. Each must have the control of the means or agencies employed to prosecute the common purpose. * * *" Rock v. Atlantic Coast Line R. Co., 222 S.C. 362, 72 S.E.2d 900. Respondent and his three teenage companions, after completing their work at their separate jobs early in the evening......
  • Bolt v. Gibson, 16900
    • United States
    • South Carolina Supreme Court
    • August 5, 1954
    ...rule obtains in our State. Another and later case that lends support to the views herein expressed is that of Rock v. Atlantic Coast Line R. Co., 222 S.C. 362, 72 S.E.2d 900, 904. In that case a father and son owned an automobile together. Plaintiff, mother of the son who owned an interest ......
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