Seay v. Southern Railway-Carolina Division
| Decision Date | 01 August 1944 |
| Docket Number | 15669. |
| Parties | SEAY v. SOUTHERN RAILWAY-CAROLINA DIVISION et al. |
| Court | South Carolina Supreme Court |
Daniel & Russell, of Spartanburg, for appellant.
Carlisle Brown & Carlisle and C. C. Brown, all of Spartanburg, for respondent.
This appeal brings up for review issues growing out of a collision which occurred about 3:30 o'clock p. m., on August 29 1942 at a railroad crossing in the city of Spartanburg resulting in the death of plaintiff's decedent, Joe Walter Seay. The action was brought on behalf of his surviving widow and two minor children, to recover damages for wrongful death. Casualty Reciprocal Exchange, the insurance carrier of Palmetto Motor Express Lines, by whom the decedent was employed as a truck driver, was made a coplaintiff because it had paid an award under the Workmen's Compensation Act for the benefit of the widow and children. In the course of the trial the defendant Southern Railway--Carolina Division, was eliminated from the case by order of the trial Judge, which left as the sole defendant Charleston & Western Carolina Railway Company.
The accident occurred at the railroad crossing on West Main Street, which is also U. S. Highway No. 29. This street runs upon a course due east and west, and the railroad extends across it due north and south.
The deceased at the time of the accident was driving a motor truck on West Main Street on a down grade, proceeding from the east toward the crossing. The vehicle was owned by Palmetto Motor Express Lines, and was composed of a tractor and trailer with an overall length of 30 feet. It was heavily loaded with baled cotton goods, and the trailer was approximately the size of a railroad box car. As the truck approached the intersection there was also approaching the crossing from the north on the railroad, an engine pushing two gondola freight cars loaded with scrap iron. The truck collided with the side of the front gondola car near its forward end, causing the death of Seay, the driver.
The specifications of negligence submitted by the Judge to the jury include: (a) failure to flag the crossing as required by the ordinance of the city of Spartanburg; (b) failure to give the statutory crossing signals; (c) failing to maintain a proper and reasonable lookout while backing the train over a street crossing; (d) failing to give timely warning; (e) backing gondola cars which suddenly emerged from behind a building; (f) failing to stop the train after it appeared, or by due diligence should have appeared, to the persons in charge of the train that its continued movement would result in endangering the person or life of Seay, the truck driver. The complaint alleged that the negligence of the appellant was a direct and proximate cause of the death of Seay.
The appellant entered a general denial, and set up in addition thereto the affirmative defense of contributory negligence and gross contributory negligence. The particulars embraced in this defense are, generally, that the decedent knowingly, negligently, and wilfully drove a heavily loaded truck, with defective brakes or no brakes, down grade on to a railroad crossing with which he was familiar, and without keeping a proper lookout for trains; that decedent knew that he could not bring the truck to a stop by use of defective brakes; and failed to take the slightest care for his own safety. It is alleged that he disregarded the statutory signals and the signals of the flagman at the crossing, although the train was within his plain view when he was at least a hundred yards from the crossing.
The trial Judge upon motion eliminated punitive damages from the case, and the trial resulted in a verdict against the appellant in the sum of $5,000, actual damages. The appeal is from the refusal of the Court to grant appellant's motions for a nonsuit and directed verdict based upon decedent's contributory negligence and gross contributory negligence, and its freedom from actionable negligence.
Plaintiff's decedent was a young man, a resident of Spartanburg, and was familiar with West Main Street and the railroad crossing in question. He was an experienced truck driver, and had been employed for years in this line of work.
The evidence shows that two or three hours prior to the accident, while at Gaffney, 20 miles from Spartanburg, he telephoned to his employer at the latter city that he was having brake trouble; that the hose unit connecting with the vacuum brakes had pulled over on the exhaust pipe, and that a hole had been burned in it. He was told by the manager with whom he talked at Spartanburg, that another hose connection was being sent to him, and that he must not move the truck until the brakes were fixed. The new unit was immediately sent to Gaffney by another employee of the Palmetto Motor Express Lines. This employee did not testify at the trial because he was away in the army. Immediately after the collision, which occurred two or three hours subsequent to the dispatch of the hose connection, the manager of Palmetto Motor Express Lines discovered a hose connection lying beside the truck trailer, half burned up, but he could not say whether this was the defective piece or the new connection which had been sent to the driver.
Leaving Gaffney, Seay drove the truck to Spartanburg. He entered the city on its east side on West Main Street, drove through the city toward the west, and reached the intersection made by Morgan Avenue with West Main Street--one block from the crossing. He was then upon a down grade, with the railroad crossing about 300 yards away. When the truck had covered about 200 yards of this distance the attention of persons on each side of the street was drawn to it by the loud noise of scraping gears. They saw the driver bending forward and raising up in an excited manner, and frantically trying to shift his gears and pull up the brakes.
Mr. Kimes, a witness for the defendant, who was an employee of Service Oil Company, which is located on the south or left side of West Main Street as you approach the crossing, and 93 yards therefrom, saw the truck pass in front of his oil station; he saw Seay trying to change gears, "and from the noise he was making with the gear shift, tried to slow down." He said that as the truck passed, he looked westward to the railroad and saw the front or lead gondola car just entering the street crossing from the north. We may say parenthetically that the warehouse of Montgomery Ward & Company, located on the north side of West Main Street, and flanking the railroad on the east, completely obstructed any view of a train coming from the north to a traveler going west, until it emerged into the street from behind the warehouse. This witness did not observe whether there was a flagman at the crossing. He stated that he was interested in observing the driver of the truck, "because I could see there was trouble ahead for him." He, as did the other witnesses, estimated the speed of the truck at 10 or 15 miles per hour.
West Main Street is 40 or 50 feet in width; it is a heavily traveled four lane highway, and the truck occupied the right center lane. The witness, Kimes, said that after the truck passed the Service Oil Company and was within about 45 yards of the crossing, it cut sharply to the left in an attempt to enter a ramp or driveway leading from West Main Street, but two children were standing upon the sidewalk at the entrance to the driveway, and in order to avoid striking them, the driver cut back to his right. He then veered to his left again, and collided at an angle with the side of the front gondola car at its forward end, near or on the sidewalk on the south side of the street. At the time of the collision the gondola cars were all the way across the street, and it appeared to this witness that in making his last turn to the left, immediately prior to the collision, Seay attempted to pass between the train, on his right, and a signal standard imbedded in concrete, on his left. The train proceeded 25 or 30 feet after the collision before stopping, although the front wheels of the leading gondola car were derailed and astraddle the rail next to the truck. When all movement ceased, the truck and gondola car were parallel and abreast. The large trailer part of the truck assembly was still upright, but wedged and crushed between the front gondola car and the metal signal standard; and the cab ahead was pushed over on its left side.
As a result of the impact, or the forward grinding movement thereafter, the exposed mouth or outlet to the gasoline tank under the truck driver's seat which projected toward the gondola car, was broken, resulting in gasoline flooding the cab, and within a few seconds after the collision the cab caught on fire. The driver succeeded in breaking through the glass of the cab door, and as he hung in flames over its edge, bystanders, including some of the witnesses in this case, pulled him out and took him to a hospital, where he died within five or six hours. There is testimony to the effect that Seay made a statement prior to his death that his truck ran into the train because his brakes failed to hold. There is no evidence that the decedent received any physical injury from the impact or collision. He died from third degree burns which extended over his entire body.
We here quote a portion of Kimes' testimony, which is similar in content to the evidence given by other witnesses for the plaintiff and the defendant:
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